INTERNATIONAL SOCIETY AND THE ESTABLISHMENT OF NEW STATES: THE PRACTICE OF STATE RECOGNITION IN THE ERA OF NATIONAL SELF-DETERMINATION by MDCULAS FABRY B.A. (Hons.), The University of Toronto, 1997 M.A., The University of British Columbia, 1998 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF _ DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES Political Science THE UNIVERSITY OF BRITISH COLUMBIA April 2005 © Mikulas Fabry, 2005 ii A B S T R A C T The dissertation examines recognition of new states, the practice historically employed to regulate membership in international society. The last fifteen years have witnessed novel or reinvigorated demands for statehood in many areas of the world. The claims of some, like those of Bosnia and Herzegovina, Eritrea, Croatia, Moldova, Georgia or East Timor, achieved recognition; those of others, like Kosovo, Krajina, Bouganville, Abkhazia, Somaliland or Chechnya, did not. However, even as most of these claims gave rise to serious conflicts, the practice has elicited little systematic scholarly reflection. Drawing upon writings of international society theorists, the dissertation looks at the criteria that have guided recognition of new states. It charts the practice from the late eighteenth century until the present. Its central finding is that state recognition has always been tied to the idea of self-determination of peoples and not, as is conventionally assumed, only since the end of the First World War. State recognition can be said to have (1) emerged as a coherent practice in response to this idea and (2) evolved chiefly as a result of the continuous necessity to come to terms with the dilemmas presented by this idea. Two versions of the idea have guided the practice - self-determination as a natural and as a positive right. The former, dominant from the 1820s to the 1950s, took as the standard for acknowledgment the achievement of de facto statehood by a people desiring independence. The latter, prevalent since the 1950s, took as the basis of recognition a positive right to independence in international law. The development of self-determination as a positive right, however, has not led to a disappearance of claims of statehood that stand outside of its confines. Groups that feel unhappy within the states they belong to have continued to make demands for independence irrespective of the fact that they may not have an international right to it. The study concludes by expressing doubt that contemporary international society can find a sustainable basis for recognition of new states other than de facto statehood. iii TABLE OF CONTENTS Abstract ii Table of Contents iii List of Tables v Acknowledgments vi INTRODUCTION 1 Objectives and Approach of the Dissertation 7 Recognition of New States: General Findings 11 Recognition of New States and National Self-Determination 14 Overview of Existing Literature 19 Structure of the Dissertation 22 CHAPTER 1: STATE RECOGNITION PRIOR TO 1815 24 • Recognition of the United States of America 29 The French Revolution and the Congress of Vienna 46 Conclusion 55 CHAPTER 2: RECOGNITION OF NEW STATES IN LATIN AMERICA 57 Initial Responses to Spanish American Revolutions 59 The US Recognition of Spanish American Republics 64 The British Recognition of Spanish American Republics 70 Recognition of Brazil 80 The Role of Uti Possidetis Juris 84 Conclusion 88 CHAPTER 3: STATE RECOGNITION IN NINETEENTH-CENTURY EUROPE 91 Recognition of Belgium 93 The Unification of Italy 100 iv The Unification of Germany 112 Recognition of Greece 119 Recognition of Romania, Serbia and Montenegro 123 Conclusion 136 CHAPTER 4: RECOGNITION OF NEW STATES BETWEEN 1918 AND 1945 138 Woodrow Wilson and Self-Determination as a Positive Right 140 Recognition of Poland, Czechoslovakia and Yugoslavia 145 Recognition of States that emerged from the Russian Empire 161 The Stimson Doctrine of Non-Recognition 166 Conclusion 171 CHAPTER 5: RECOGNITION OF NEW STATES IN DECOLONIZATION 173 Decolonization and State Recognition 177 The New Uti Possidetis Juris as the New 'Dynastic Legitimacy' 193 Conclusion 208 CHAPTER 6: RECOGNITION IN THE POST-COLD WAR PERIOD 210 Recognition and Non-Recognition in the Former Soviet Union 213 Recognition and Non-Recognition in the Former SFRY 226 Justifying Territorial Integrity and Self-Determination of Peoples 249 CONCLUSION 255 BIBLIOGRAPHY 263 V LIST OF TABLES Table 1: Satellite States of Revolutionary France, 1792-1814 50 Table 2: Present-day States that have arisen out of Formal Dependencies since 1941 175 vi ACKNOWLEDGEMENTS It is with pleasure and gratitude that I acknowledge the support of a number of people who, in one way or another, contributed to the completion of this project. My greatest intellectual debt is to Robert Jackson and Kal Holsti who oversaw the research of the dissertation. Their influence on my thinking about international relations and its academic study has been profound. Kal taught me early on the importance of studying international history and classical writers. Bob's writings not only served as an essential springboard to the subject of the thesis, but also as examples of an approach that I found attractive and sought here to cultivate. Their comments on individual chapters were of immense value in improving the final product. I also benefited greatly from discussions with Mark Zacher who strived to sharpen the structure of the thesis and the clarity of its arguments. Outside of my doctoral committee, I am grateful to Alan James, Brian Job, David Long and Ian Townsend-Gault who provided me with very helpful comments and suggestions on the written material. I owe special thanks to Mark Zacher and Brian Job that goes beyond the dissertation. Mark has continually given me invaluable advice and assistance on all things academic. Brian invited me to join the University of British Columbia's Centre of International Relations and supported my activities in numerous ways throughout my program. The Centre has been an excellent place to work and learn in. Furthermore, both Mark and Brian, just as Bob and Kal, have served as models of scholarly integrity and humility. Other people sustained me in my efforts. Conversations with Will Bain, Jean Laponce and Sam Laselva were sources of great learning and inspiration over the course of last several years. Paula Barrios and Benoit Leduc helped me with translation of documents in French, and Paula in addition proofread several drafts of my chapters. Lesley Burns, David Capie, Nico Dragoljevic, Kai Kenkel, Yair Linn, Mark Manger, Wendy McAvoy, Andres Mejia-Acosta, Alberto Mendez, Phil Orchard and Pablo Policzer made various contributions along the way as well. I am also indebted to my friends Benny Mantin, his soon-wife-to-be Nicci Holzapfel, and Eran Rubin. And above all else, I would like to thank my parents and brother Martin. I could count on their unflinching love and support at all times and through any difficulty. Finally, I would like to acknowledge with deep gratitude financial support of the University of British Columbia's Faculty of Graduate Studies, the Killam Trust, the Social Sciences and Humanities Research Council of Canada, and Sibyl von der Schulenburg. 1 I N T R O D U C T I O N To recognize the independence of a new state, and so favour, possibly determine its admission into the family of nations, is the highest possible exercise of sovereign power, because it affects in any case the welfare of two nations and often the peace of the world. US Secretary of State William Seward in 18611 We ought not to acknowledge the separate and independent existence of any [state], which is so doubtfully established, that the mere effect of that acknowledgment shall be to mix parties again in internal squabbles, if not in open hostilities. British Foreign Secretary George Canning in 18242 On April 7, 1992, the United States of America and all twelve countries of the European Community (EC) extended recognition to the Republic of Bosnia and Herzegovina. Although the EC communique from the previous day did not provide reasons for the decision, the US statement did note that "the requisite criteria for recognition" had been met and that "the wil l of citizens of [Bosnia and Herzegovina] for sovereignty" had been expressed peacefully and democratically.3 As many diplomats and observers had feared, the new state descended almost instantly into a ghastly war. That war pitted against one another principally Bosnia's own citizens and was fought over the purportedly decided, matter of their will to constitute a sovereign state. By far the most serious armed confrontation in Europe since the end of World War II, the 1992-1995 conflict ended with the arrival of international administration and stationing of foreign troops throughout the republic. Ever since, their main task has been to protect the Bosnians from each other. Given the progression of events, there appears little doubt that it was the EC/US recognition that precipitated the onset of the Bosnian war. This is not to say either that this act was the sole, or 1 Mr. Seward to Mr. Adams, April 10, 1861, Papers relating to the Foreign Relations of the United States, Vol. 1 (1861) (Washington, D.C.: Government Printing Office, 1861), p. 79. 2 Speech to the House of Commons on Recognition of the Independence of South America, June 25, 1824, R. Therry (ed.), The Speeches of the Honourable George Canning with a Memoir of His Life, Vol. 5, 3 r d ed. (London: James Ridgway and Sons, 1836), pp. 302-303. 3 Statement on United States Recognition of the Former Yugoslav Republics, April 7, 1992, Public Papers of the Presidents of the United States: George Bush, 1992-1993, Vol. 1 (Washington, DC: Government Printing Office, 1993), p. 521. 2 the most important, cause of this conflict or that without it there would have been no violence. But the facts of the case are rather compelling to support the conjecture that recognition was the tipping event. There had been grave tensions in Bosnia since the controversial passing of the memorandum on sovereignty in the Sarajevo parliament in October 1991. These had still increased following the fiercely disputed referendum on independence in March 1992. The general hostilities, though, erupted only on the heels of the coordinated decision of the United States and the European Community. How could a public pronouncement that a new state is recognized have these grave effects? What did this act mean and in what sense was it significant? Those engaged in the scholarly study of international law and politics do not provide ready answers. The prevalent theory among international lawyers today is that recognition has a declaratory character.4 According to this theory, once a political community satisfies certain substantive criteria, often referred to as the classical or Montevideo criteria,5 it becomes a state regardless of its recognition, or lack thereof, by other states. Recognition does not affect statehood as such or a state's international rights and obligations. It is a formality of very specific kind: a pre-requisite for setting up diplomatic ties. So to take the case of Bosnia, as one may take any other case, the act expressed willingness of countries around the world to engage in standard state-to-state dealings with the new country. Politically the upgrade of relations with the world might have been of considerable symbolic value, but this did not have any bearing on Bosnia's already established standing as a sovereign state. Some legal scholars dispute this account by arguing that foreign recognition is necessary for a state's sovereign status internationally - the subject has been debated in the international law literature for decades. Students of world politics, on the other hand, commonly regard recognition as 4 See Thomas Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport, CT: Praeger, 1999), p. 19. 5 These are state-defining criteria, an influential statement of which is found in the Montevideo Convention on the Rights and Duties of States of December 26, 1933. According to its Art. 1, "the state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; 3 a somewhat arid, even tedious, topic that is better left outside of their departments. They have neither been thinking of it in broader theoretical terms nor inquired whether it may be an important institution in its own right.6 The roots of this reluctance are likely to found in the character of major questions guiding the dominant modes of International Relations (IR) theorizing. Generally speaking, discussions of interstate relations within and between classical realists, classical liberals, neorealists, neoliberal institutionalists or historical sociologists take as a given, rather than problematize, the basic political-juridical attributes of modem statehood. For Machiavelli, Bodin, Hobbes, Locke, Spinoza, Montesquieu, Saint-Pierre, Rousseau, Hume, Kant, Bentham, Hegel, Austin, Weber, Morgenthau, Carr, Aron, Tilly, Waltz, Keohane or Krasner, to mention some of the most eminent names linked to these schools of thought, states are self-constituted and self-contained bodies. They are assumed to exist because they have been able to perpetuate functioning government and domestic order. New states are no exception: they come into being because they have been capable of establishing structures of authority backed by a coercive apparatus of power. That power is what is ultimately able to fend off internal and external challenges to state authority. Foreign states can play a crucial role in maintaining a state's existence: for example, by way of alliances or collective security arrangements. They can be of critical import even in launching new states. Machiavelli's The Prince (1513), arguably the greatest book on state formation in the annals of political philosophy, contains a c) government; and d) capacity to enter into relations with the other states." For the text of the inter-American treaty, see The American Journal of International Law, 28, Official Documents Supplement (1934), pp. 75-78. 6 To the extent that IR scholars have written in recent years about recognition, they commented on the instrumentality and expediency of recognition - mostly with regard to stability or instability in the affected region and beyond. See Richard Caplan, 'The European Community's Recognition of New States in Yugoslavia: The Strategic Implication', The Journal of Strategic Studies, 21 (1998), pp. 24-45 and his 'Conditional Recognition as an Instrument of Ethnic Conflict Regulation: The European Community and Yugoslavia', Nations and Nationalism, 8 (2002), pp. 157-177; One study asked what the episode of Germany's unilateral recognition of Croatia reveals about the neo-liberal theory of cooperation. See Beverly Crawford, 'Explaining Defection from International Cooperation: Germany's Unilateral Recognition of Croatia', World Politics, 48 (1996), pp. 482-521. 4 chapter on how to found a state by making use of the arms of others, including other principalities.7 But these eventualities are contingent to, not constitutive of, statehood.8 Scholars working in the international society tradition agree on the subject of established states but are split as far as new states are concerned. However, this divergence has not really been explored or articulated. States are conceptualized by all to form an international society since they acknowledge "certain common interests and...some common values, they regard themselves as bound by certain rules in their dealings with one another, such as that they should respect one another's claims to independence, that they should honour agreements into which they enter, and that they should be subject to certain limitations in exercising force against one another."9 For Gentili, Grotius, Pufendorf, Wolff, Vattel and everyone else, mutual recognition of independence lies at the core of international society.10 7 See Chapter VII 'Of New Principalities That Are Acquired by Other's Arms and Fortune', in Niccolo Machiavelli, The Prince, trans, by Harvey C. Mansfield, 2nd ed. (Chicago: The University of Chicago Press, 1998). 8 All of this applies as well to Hegel despite the fact that 'recognition' as a social phenomenon and its constitutive effects are major themes in his work. When discussing international politics, Hegel discounts the importance of the political-juridical act of state recognition. Recognition is, according to the German philosopher, necessary for the existence of legal contractual relationships between states because "contract presupposes that the parties entering it recognize each other as persons... " But while recognition is clearly constitutive of states as international legal persons, international legal personality is separate from sovereign statehood as such. International law springs from relations among existing states - it does not define but merely presupposes statehood - and thus it cannot render legal criteria for recognition of new states. It follows that recognition is not constitutive of statehood: first, it can come only in the wake of already established statehood and, second, it is an arbitrary act on the part of a recognizing state. What is more, the importance of international law as a whole is rather limited. Because there is no higher authority above states, Hegel says, they remain ultimately in a state of nature, connected only by very minimal, imperfect and mostly formal social ties. See Georg F. W. Hegel, Philosophy of Right, trans, by T. M. Knox (Oxford: Clarendon Press, 1952), paras. 71, 330-340. 9 Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 2nd ed. (New York: Columbia University Press, 1995), p. 13. 1 0 It should be pointed out that some authors who identify their work as falling within the burgeoning constructivist approach to international politics also agree that mutual recognition is a vital element in orderly relations among states. In the most meticulous exposition of this approach so far Alexander Wendt writes about "the role of mutual recognition of external sovereignty in mitigating the effects of international anarchy" and maintains that "in the particular culture of the Westphalian states system sovereignty is also right constituted by mutual recognition, which confers on each state certain freedoms (for example, from intervention) and capacities (equal standing before international law)." (italics original) See Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), pp. 208, 182; However, constructivist studies of how new countries become established as sovereign states and how that establishment relates to the states system have so far been rare. The volume treating these topics most thoroughly is Thomas J. Biersteker 5 Differences emerge, though, on how new states acquire sovereignty. Writers such as Charles Manning and Alan James11 continue the argument of early modern publicists, albeit without grounding it in natural law.12 They contend that states are ontologically prior to international society. States and their mutual recognition constitute a society of states but that society is not constitutive of its new members. These authors too hold that the modern state is self-made and self-enclosed public authority. In the words of James, "the observation that a state is sovereign is one about the standing < 13 of the state in the eyes of its own constitutional law." As such, "state sovereignty is a factual matter...it cannot, once obtained, be affected by anything which is said by outsiders."14 Recognition is necessary for the establishment of diplomatic relations and, more generally, normal intercourse between states, but "recognition presupposes a state's existence; it does not create it."15 "The and Cynthia Weber (eds.), State Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996), especially chs. 1, 2, 8 and 9. 1 1 See C.A.W. Manning, 'The Legal Framework in the World of Change', in Brian Porter (ed.), The Aberystwyth Papers: International Politics 1919-1969 (London: Oxford University Press, 1972); Alan James, Sovereign Statehood: Basis of International Society (London: Allen & Unwin, 1986); Alan James, 'Diplomatic Relations and Contacts', in The British Year Book of International Law 1991 (Oxford: Clarendon Press, 1992); Alan James, 'The Practice of Sovereign Statehood in Contemporary International Society', Political Studies, 47 (1999), pp.457-473; and Alan James, 'States and Sovereignty', in Trevor Salmon (ed.), Issues in International Relations (London: Routledge, 2000). 1 2 Vattel's view is summarized in the following passage in Book I, Chapter I, Paragraph 4 of his Law of Nations (1758): "Every nation which governs itself, under whatever form, and which does not depend on any other nation, is a sovereign state. Its rights are, in the natural order, the same as those of every other state. Such is the character of the moral persons who live together in a society established by nature and subject to the law of nations. To give a nation the right to a definite position in this great society, it need only be truly sovereign and independent; it must govern itself by its own authority and its own laws." (italics original) See Emmerich de Vattel, 77ze Law of Nations or The Principles of Natural Law: Applied to the Conduct and to the Affairs of Nations and of Sovereigns, trans, by Charles G. Fenwick (Washington, D.C.: The Carnegie Institution, 1916), p. 11; Gentili, Grotius, Pufendorf and Wolff also held that any entity that manages to establish itself empirically independent is automatically subject to, and under the protection of, natural law. They understood the society of states fundamentally in natural, not historical terms. Mutual recognition was for them in the first place a precept of natural and not - what at the time was still embryonic - customary international law. 1 3 James, 'States and Sovereignty', p. 15. 1 4 James, Sovereign Statehood, p. 152-3. 1 5 Ibid., p. 147. Compare this with Samuel Pufendorf s argument from 1672 that "a king owes his sovereignty and majesty to no one outside his realm... " If "a people which either first comes together to form a state or leaving a previous form of state" confers sovereignty on its ruler, the latter "need not obtain the consent or approval of other kings or states... " See Book VII, Chapter 3, Paragraph 9 of his De Jure Naturae et Gentium Libri Octo, Vol. 2, trans, by CH. and W.A. Oldfather (Oxford: Clarendon Press, 1934), pp. 1008-1009. 6 recognition of a state indicates that the entity concerned possesses the characteristics of sovereign statehood, and hence exists as such, rather than helps to bring it into existence."16 Others implicitly disagree with this line of reasoning. Martin Wight introduces the concept of international legitimacy by which he means "collective judgment of international society about rightful membership of the family of nations; how sovereignty may be transferred; and how state succession is to be regulated, when large states break into smaller, or several states combine into one." He adds that "the branch of international law that is concerned with legitimacy...is the law concerning the recognition of states. This seeks to lay down principles to guide existing states in the matter of recognizing a new community as fulfilling the conditions of statehood and qualifying for membership of the society of nations."17 If there is indeed such a thing as 'rightful membership in the family of nations' and if other states may and do determine this membership or 'transfer of sovereignty,' then it cannot be said that sovereignty is merely a question for individual states themselves or that new states are entirely self-constituted. The existing states have a definite constitutive and prescriptive role in the birth of new sovereign states. In contrast to Manning or James, Wight's notion of international legitimacy implies that at some historical juncture - the moment the plurality of self-constituted states came to acknowledge each other's independence and still understand to form a common association governed by shared law - the society of states became ontologically prior to any new sovereign state. From that point in time on, any political community wishing to participate as a formal equal in the workings of this society's institutions or to be a subject of its law and benefit from its protection, had to be acknowledged by it as a sovereign state.18 The collectivity of states, hence, evolved "not as an aggregate of separate communities but itself a community: a community of communities tied together by its constitutive 1 6 James, 'Diplomatic Relations and Contacts', p. 353. 1 7 Martin Wight, 'International Legitimacy', in Martin Wight, Systems of States, ed. by Hedley Bull (Leicester: Leicester University Press, 1977), pp. 153, 158; The term international legitimacy is used throughout this study exclusively in the sense Wight defines it. 1 8 Hedley Bull, 'The European International Order', in Kai Alderson and Andrew Hurrell (eds.), Hedley Bull on International Society (London: Macmillan Press, 2000), p. 176. 7 practices, including those defining the attributes of statehood."19 In this community of communities sovereign statehood itself developed into "a status constituted by international law."20 Wight's concept suggests that unlike Machiavelli's prince-founder, prospective sovereigns within the society of states cannot be solely 'prophets armed.' The creation of effective structures of power and domestic authority, as vital as that may be, is not enough. Seducing Fortuna, the higher force capable of improving one's odds of success in that effort, can accomplish only so much. Since sovereignty is "rationed and regulated by those who currently enjoy it,"21 aspiring founders must entice the existing states into formal acceptance. By suggesting that ideas and rules concerning rightful political authority are pervasive internationally, Wight's concept also presupposes that, contrary to postulates of realist theory, international relations take place within deeply embedded normative structures. Objectives and Approach of the Dissertation The purpose of this dissertation is to examine the practice of recognition of new states by building on the approach and insights of the latter international society tradition. That the subject of new states is relevant at present can hardly be doubted. On top of long-standing cases, such as that of the Palestinians, the last fifteen years have witnessed novel or reinvigorated demands for statehood in Central and Southeastern Europe, the former Soviet Union, the Horn of Africa, Southeast Asia and the South Pacific, and some of them have turned into conflicts with major regional or international 1 9 Terry Nardin, 'International Ethics and International Law', Review of International Studies, 18 (1992), p. 26. 2 0 Ibid.; It may strike one as surprising, but something very similar is suggested by Hans Morgenthau in his brief discussion of sovereignty and what he calls 'common or necessary international law': ".. .A relatively small number of rules of international law do not owe their existence to the consent of the members of the international community. They are either logical precondition for the existence of any legal system such as rules of interpretation and rules providing sanctions, or they are the logical precondition of the existence of a multiple-state system, such as the rules delimiting the jurisdiction of individual states. Rules of this kind are binding upon all states, regardless of their consent, and might be called the common or necessary international law, the jus necessarium of the modern states system. Indeed, it makes sovereignty as a legal system possible. For without the mutual respect for the territorial jurisdiction of the individual nation, and without the legal enforcement of that respect, international law and a state system based on it could obviously not exist." See Hans Morgenthau, Politics Among Nations, 5th ed. (New York: Alfred A. Knopf, 1973), p. 307-308; This quote not only implies that sovereignty is a legal concept of the modern state system, but also that it, as such, ontologically precedes any particular sovereign state. However, as far as this author is aware, Morgenthau does not elaborate on this idea and its implications for understanding international politics elsewhere in his published work. 8 dimensions. The claims of some, like those of Bosnia and Herzegovina, Eritrea, Croatia, Moldova or East Timor, achieved recognition; those of others, like Kosovo, Krajina, Bouganville, Abkhazia, Somaliland or Chechnya, did not. The central question and point of contention in all these cases has been: who does qualify as a sovereign state? Despite its seminal importance in contemporary world affairs, the issue of the norms or criteria of acknowledging new states has attracted little sustained attention even among international lawyers. The declaratory theory has remained a dominant mode of conceiving recognition despite the fact that Bosnia and Herzegovina, Croatia, Azerbaijan or Moldova, similarly to a number of ex-colonies in the 1960s and the 1970s, plainly cannot be said to have met the criteria postulated by the theory or to have been considered as states by international society prior to their recognition. While, in light of recent cases, voices critical of this theory have been raised - among them those holding the constitutive view - none has put forward a more in-depth reevaluation of the accrued thinking about recognition.22 Indeed, one may wonder whether drawn-out legal debates that have tended to revolve around recognition theory have not come at the expense of concerted, systematic focus on recognition practice. There are certainly international lawyers who take this view. Ian Brownlie wrote more than twenty years ago that "in the case of 'recognition' theory has not only failed to enhance the subject but has created a tertium quid which stands, like a bank of fog on a still day, between the observer and the contours of the ground which calls for investigation."23 A book-long study of state recognition published recently opens with an observation that Brownlie's "desperation.. .has proven 2 1 Robert Jackson, The Global Covenant: Human Conduct in the World of States (Oxford: Oxford University Press, 2000), p. 323. 2 2 See, for example, Roland Rich, 'Recognition of States: The Collapse of Yugoslavia and the Soviet Union', European Journal of International Law 4 (1993), pp. 36-65; and Christian Hillgruber, 'The Admission of New States to the International Community', European Journal of International Law 9 (1998), pp. 491-509. 2 3 Ian Brownlie, 'Recognition in Theory and Practice', in R. Macdonald and Douglas Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Dordrecht, The Netherlands: Martinus Nijhoff, 1983), p. 627. 9 prescient. The fog has not lifted but in fact has thickened."24 And it concludes by asserting that "the old doctrinal debate" between proponents of the declaratory and constitutive theories has become "less and less illuminating, i f ever it illuminated much at a l l . " 2 5 Brownlie offered an explanation of the disconnect between theory and practice by suggesting that the theories "have assumed a 'theological' role as a body of thought with its own validity which tends to distract the student, and to play the role of master rather than servant."26 The view that the legal theories have become detached from state conduct and acquired a life of their own is also found in some older works. Writing some forty years ago, William O'Brien and U l f Goebel, the authors of an exhaustive survey of US decolonization recognition policy, took it as a consequence of persistent intrusion into scholarly analyses of a priori notions about of what recognition ought to be. "International law authorities have rendered a most elusive subject even more complex by imposing their own unsubstantiated theories on a record of practice that is murky enough already and that often becomes further distorted by subjective analyses."27 Both Brownlie and O'Brien/Goebel called for practice to be the starting and focal point in academic analyses. This dissertation is a study of practice. While it borrows extensively from legal scholarship and has obvious points of convergence with constitutive theorists,28 it does not delve into the scholastic controversies between the declaratory and constitutive schools. It seeks to make sense of international responses to claims of statehood not by testing them against pre-conceived theories but rather by understanding them on their own terms. Because the conduct of recognition cannot be divorced either from international law or politics, this understanding lies not only in exposition of legal rules but also of normative sources of those rules; and not only in appreciation of legal concerns 2 4 Grant, The Recognition of States, p. ix. 25Ibid.,p. 216. 2 6 Brownlie, 'Recognition in Theory and Practice', p. 634. 2 7 William V. O'Brien and Ulf H. Goebel, 'United States Recognition Policy toward the New Nations', in William V. O'Brien (ed.), The New Nations in International Law and Diplomacy (New York: Frederick A. Prager, 1965), p. 98. 2 8 Among legal studies of state recognition, my thinking has been most influenced by H. Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947). 10 and consequences but also of non-legal concerns and consequences. Recognition practitioners have always operated in the entire context of international relations and those investigating their assumptions, claims or decisions have few alternatives but to operate in it too. Thus, while the prime focus is on the norms or criteria of acknowledging new states, the inquiry also pays attention to other considerations important to the practitioners, such as timing, strategic use of, or conditions attached to, recognition. The thesis employs, as do most international society scholars, the classical interpretive approach that draws simultaneously on law, philosophy, and history.29 Integrative and holistic in character, this approach rejects excessive compartmentalization of international relations into different subject areas as artificial. To see international politics, ethics, security, history or law as essentially separate from each other is to be misled. A study of any practice cannot do without at least some discussion of its history. In the case of recognition, history looms large. James Baker, the then US secretary of state, could have spoken his predecessor's words in the introduction's opening quote around the time of Bosnian recognition and, despite their rhetorical flair, they would not have rung false. William Seward uttered them early into the US Civil War while trying to avert Franco-British recognition of the "Confederate States of America," which, he feared, would leave his government with no choice but to wage war against three enemies at the same time. The gulf of one hundred thirty years did not remove the possibility that an act of recognition may set off a large-scale armed conflict. Likewise, Douglas Hurd, the British foreign secretary in early 1992, could have evoked George Canning's assertion, which was uttered in response to the intense lobbying drive of British merchants who pressed for immediate recognition of, and regularization of commerce with, the new Latin American states. International responses to claims of statehood have a long past and dilemmas and controversies surrounding them disclose a remarkable degree of continuity and durability. Taken as a whole, however, the scholarly 2 9 Hedley Bull, 'International Theory: The Case for a Classical Approach', in Klaus Knorr and James N. Rosenau (eds.), Contending Approaches to International Politics (Princeton: Princeton University Press, 1969). 11 treatment of these responses is fragmented; this is particularly true of the period prior to the twentieth century. The thesis seeks a comprehensive grasp of the practice of state recognition by exploring most of its major episodes. It does so not out of hope that history stores readily discernible 'solutions' to current problems, but rather out of expectation that we may learn from past responses that shared at least some common features with the present ones. Recognition of New States: General Findings What is the place of state recognition in international relations? Recognition is an indispensable pre-condition for a political community's status as a sovereign state internationally. Though the impulse to achieve it ordinarily comes from within a community - by virtue of assertion of its constitutional separateness - a state cannot be said to be sovereign exclusively in terms of its own constitution. Sovereignty has developed into both a national and international category: it at once pertains to the state and to the society of states. Domestic constitutional law delineates the former, public international law the latter. The nexus linking the 'inside' (or the internal aspect of sovereignty) with the 'outside' (its external aspect) is recognition. State recognition is thus a constitutive, foundational practice of modern international society. Sovereignty in international law is achieved when the already sovereign countries widely acknowledge that they deem a claimant to have international legal personality with sovereign rights and duties. This is to deny neither that unrecognized, non-sovereign entities have existed throughout the modern states system nor that they had been commonly treated as having some legal standing by the existing states. But it is to argue that they did not have sovereign standing and were thus not full and equal members of the society of states. The absence of acknowledged sovereign rights has historically had a range of adverse consequences for those who found themselves in this position. One of the relatively milder upshots has been the humiliation unrecognized entities would have to bear by having their official name -official, that is, only in terms of their own constitutional law - commonly placed in quotation marks abroad. The use of quotation marks has differentiated those who merely self-proclaimed to be 12 sovereign, and thus from the perspective of foreign authorities pretended to be a state, from those who in the same eyes have actually been sovereign. A much more dramatic consequence for non-recognized entities, as will be seen, has been that non-recognition often left them vulnerable to outside takeover. In the case of recognized countries enjoying the full protection of international law such a fate has indeed been a rarity. And even then the enduring claim that these states' sovereignty was unjustly and illegally extinguished served in a few cases - for instance, Latvia, Lithuania and Estonia in 1991 - as a key justification for their later reappearance. The first thing to note about an act of state recognition is that it is no different in its structure from, say, an act of employing military force or an act of imposing economic sanctions or an act of expelling a foreign diplomat. Each is a single act with both legal and political aspects. Each is influenced by primary legal or quasi-legal norms that delineate permissible circumstances under which it can be undertaken, and shaped by secondary political and discretionary factors that decide its actual execution once those permissible circumstances have been deemed to be met. Although their actual decisions have been commonly affected by political factors such as national interests, pressures from domestic constituencies or shared interstate interests, members of international society have nevertheless generally understood recognition of a new state to be an activity regulated by binding norms that are independent from, and logically precede, those factors. This has been the case even in situations where differences arose over which particular norms were to apply. Second, recognition of new states, not unlike a whole array of other law-governed practices in a world without international government, has been characterized by decentralization. It is ultimately up to each state to decide whether the circumstances postulated by the norms have been satisfied and to take into account pertinent political considerations. There have been multiple instances of joint and coordinated recognition or non-recognition, including decisions of international organizations such as the League of Nations and the United Nations binding on its members. However, recognition has remained a prerogative of individual states. 13 The location of recognition authority at the state level could potentially lead to a myriad of disparate decisions, but, in reality, such messy outcomes have been uncommon. For the third general observation one can make is that state recognition has been a practice led and shaped by major powers, especially the great powers.30 Claims of statehood have from the very beginning had a propensity to get enmeshed with questions of wider international order, and questions of international order in turn have been a special preserve of the great powers.31 Given their role in the society of states, the great powers' recognition has normally preceded, and carried far more weight than, recognition by other states. Indeed, the latter have normally looked to the former for direction; where they did not, their expeditiousness was likely of little import.32 In general, where the decisions of major powers would make up a 'critical mass' - that is, no significant differences over acknowledgment of a particular state or group of states arose among them - the smaller powers would follow with their recognition in a 'snowball effect.'33 On the other hand, the bigger the incongruence among major powers over recognition norms either in general or in particular cases, the greater the precariousness of recognition practice. The greatest volatility arose during open great power conflicts, paralleling the much broader volatility of the rule of international law. For all these reasons, this thesis, not unlike other studies of the subject, concentrates primarily on major powers. Fourth, the practice has encompassed two analytically distinct categories of requests for recognition as a 'new state'. These categories reflect two sets of circumstances under which such requests have been put forward: following externally and internally effected changes to existing statehood. Entities formed as a direct consequence of the threat or use of force across existing international boundaries fall under the first category. The second and more voluminous group 3 0 I use 'great powers' in the traditional sense of systemic great powers. But 'major powers' category includes also subsystemic powers, e.g. the United States in the western hemisphere in the nineteenth century. 3 1 See Bull, The Anarchical Society, ch. 9. 3 2 In 1991, Iceland was the first foreign country to establish diplomatic relations with the Baltic republics as well as to recognize Croatia, yet its actions barely registered at the time. 3 3 The terms are used in Rick Fawn and James Mayall, 'Recognition, Self-Determination and Secession in Post-Cold War International Society', in Rick Fawn and Jeremy Larkins (eds.), International Society after the Cold War: Anarchy and Order Reconsidered (London: Macmillan Press, 1996), p. 209. 14 consists of political communities created within those boundaries: secession from a state, state dissolution, merger of two or more states, and decolonization. Fifth, recognition of new states has been intimately tied to the idea of self-determination of peoples. The activity can be said to have: (1) emerged as a coherent and discrete practice in response to this idea; and (2) evolved and changed chiefly as a result of the continuous necessity to come to terms with the problems and dilemmas presented by this idea. It is to this link that the introduction now turns in more detail. Recognition of New States and National Self-Determination National self-determination or self-determination of peoples is an idea of international justice that emerged in the second half of the eighteenth century. It was rooted in the proposition that a group of people sharing certain emotional, sentimental bonds and aware of its distinct characteristics vis-a-vis other groups of people has a right to establish, whether within or outside of the borders of the country it finds itself in, alone or in union with other peoples, its own government. It was based on the classic liberal premise that individuals and associations of individuals know best how to arrange their political lives because they possess reason. Between 1815 and 1945 international society was able to curb the potentially destructive impact of the idea of self-determination by maintaining that only political communities capable of attaining de facto or empirical independence could be acknowledged as sovereign. Though it had manifested itself in France's recognition of the United States in 1778 and traced its normative genesis to the Grotian natural law tradition, this practice did not receive a definite shape prior to the final phase of Latin American struggles for independence between 1818 and 1825. Crafted by American and British foreign policymakers, it was a product of their countries' momentous political confrontation with the Holy Alliance and its solidarist conception of international society. According to that conception, the states system rested on kinship among European monarchs, the essence of which was collective responsibility for dynastic and territorial integrity of each other's domains. The only acceptable method of transferring sovereignty or territory, as stipulated for instance in the 15 Austro-Russian-Prussian Protocol of the Congress of Troppau (1820), was by consent of the legitimate ruler. Facts established otherwise could not nullify existing rights: illegitimate change was to remain unrecognized until the injured sovereign or fellow royals intervening on his/her behalf could overturn it. In contrast, the American and British founders of the de facto recognition doctrine espoused a pluralistic conception of international society. At its heart lay a fundamental division of the international and domestic spheres and foreign non-intervention into the latter. Third parties had a moral and legal obligation to refrain from coercive interference in foreign civil conflicts unless their rights were directly infringed. This included a duty to respect the territorial integrity of other countries. There was a limit to this obligation, though: the patent inability of a country to maintain its territorial integrity from within as demonstrated by the founding of a new, factually independent state. The established right was then invalidated by this 'self-determined' fact. The collectivity that had attained sovereignty in fact was entitled to acknowledgment of that sovereignty in (international) law owing to the authoritative normative force of the former: the formation of a stable, functioning empirical entity was taken as an authentic expression of the will of its people to constitute an independent state. Outsiders could not justifiably thwart that materialized will. The obvious implication of this scheme was that stepping forward and declaring who one was and under whom one wished to be governed was not enough to garner admission into the society of states. Holding classical liberal views, the American and British founders of the practice believed that each people have a right to determine its political destiny, including a right to renounce the sovereignty under which they live. But they construed it as a natural right that required from third parties no more than respect for the determination made and the outcome achieved. The right did not obligate others to help realize the willed outcome. Indeed, only the self in question could realize it. Existing countries could not make it their business to turn the wishes of foreign peoples into realities, no matter how much sympathy those claims might have engendered, because such a course was bound to necessitate some form of coercive intercession from without that entailed infractions of 16 international law and went against the morality of a system made up of sovereign polities. For the nineteenth-century Anglo-American doctrine, the sole positive right was the right of a people to be recognized internationally and the sole source of this positive right was de facto statehood. Gradually adopted by other states, this norm displaced dynastic right. It was central not only in response to secessions - in the Americas and Europe - but also to other types of internally effected changes to existing statehood, such as the merger of several states into a Kingdom of Italy (1859-1861), the dissolution of Austria-Hungary (1918) or the decolonization of Iraq (1932). Moreover, it proved to be workable in a wide range of contexts, not excluding those where a military intervention took place for reasons other than the defence of rights of third parties (e.g. the secessions of three Balkan states in 1878). The American and British founders of de facto recognition policy were not only against the sort of interventionism defended by most continental monarchies, but also against the kind exhibited during the French revolutionary years. France's armed mission to foment or aid revolutions abroad after the collapse of the monarchy in 1792 metamorphosed into forcible annexation of foreign territories and carving of satellite entities wholly dependent on French power for their survival. The belief that the right to replace sovereignty was internal to a group asserting it led the American and British statesmen to reject annexation or partition of existing states by offensive external force just as they rejected foreign intervention to preclude new states from being erected by internal efforts. In this they were at least partly in accord with the other major powers, since all of them had supported at the Congress of Vienna (1815) delegitimization of unilateral conquest among European states. The Vienna consensus proved extremely hard to uphold in the long term, particularly in the period between 1856 and 1914: the more the concert of the great powers weakened, the harder it was to forestall unilateral conquests. The Paris Peace Conference (1919) and the founding conference of the United Nations at San Francisco (1945) nevertheless went much further than the Congress of Vienna as the League of Nations Covenant abolished, and the UN Charter reaffirmed the demise of, the right of conquest as such. The obligation of non-recognition of forcible territorial changes across 17 international boundaries, including those leading to proclamation of a new state - pronounced by the United States and the League of Nations in what is known as the Stimson Doctrine (1932) - became an indispensable part of this development. But while non-recognition of entities created in the aftermath of the external use of force became firmly entrenched in international law after 1945, the post-World War II period has witnessed the abandonment of de facto statehood as the standard for recognition of indigenously founded new states. Since the 1950s the determining factor in admission of new members into the society of states has been whether an entity has a prior right to independence, rather than whether it is, independent. The notions that factual establishment of a state entitles one to foreign acknowledgment as well as its flipside - that falling short of it excludes one from such acknowledgment - have been essentially discarded. This change followed a shift in the understanding of self-determination from a natural to positive right. According to this conception pioneered by US President Woodrow Wilson in 1916-1918, peoples' right to decide their political future did impose obligations on outsiders to help realize it. In contrast to its earlier natural right version, self-determination of peoples as a positive right thus demanded that outsiders identify: (1) the peoples who bear the right; and (2) the precise scope of obligations owed to them. That immense, if not insurmountable, operational difficulties were inherent in this concept became apparent as soon as the Paris Peace Conference convened. The two central questions - which peoples qualify for the right of self-determination? and how can existing states ensure the fulfillment of claims of those who are deemed to possess the right of self-determination but are not in fact in possession of what is claimed? - had no obvious general answers and were contested in nearly all specific instances. The conference participants, including President Wilson, did come to appreciate, however, that if the mere voicing of claims gave groups positive entitlement and if outsiders would intervene to effect self-determination claims beyond their boundaries, there would be no limit to fragmentation of states and international disorder. The 18 interwar period, and most gravely Nazi activities in the name of self-determination of ethnic Germans beyond Germany, reinforced this sentiment dramatically. Yet, despite all the skepticism accumulated between 1919 and 1945, the prevailing conceptualization of self-determination as a positive right did not alter. It, in fact, reached apex in decolonization and its aftermath. Reflecting the global normative consensus that developed in the course of the 1950s that colonial domination was no longer tolerable, international society defined, for the first time, a category of peoples entitled to sovereignty. The generally agreed-upon right to self-determination, and not meeting of factual criteria, was the key to foreign recognition of the colonial peoples of Africa, Asia, Oceania and the Caribbean. Given that self-determination as a positive right could not be universal, the identification of the peoples eligible for independence inevitably entailed some corresponding notion of ineligibility. While the ground for regulating foreign recognition of claims of statehood was evident in the past - the pool of peoples capable of establishing de facto independence had always been smaller than the number of peoples wishing to have it - that ground was not immediately evident now. The subsequent international practice made clear what those limits were. In the world in which virtually the entire populated land was, or was slated to become, integral part of some sovereign state, the legitimate candidates for recognition have been restricted to constituent units of dissolved states or those entities that received consent of their parent states. The development of self-determination as a positive right, however, has not led to a disappearance of claims of statehood that stand outside of its confines. Groups that feel oppressed by, or at minimum unhappy within, the states they belong to have continued to make demands for independence - just as they had done since the late eighteenth century - irrespective of the fact that they may not have a positive right to it. If the American Revolution, in Wight's words, opened the floodgates,34 then those floodgates have not yet closed. Whether existing states like it or not, demands for independence still generate various crises around the globe, including armed conflicts 19 such as the already mentioned cases in the Balkans, the Middle East, the former Soviet Union or Southeast Asia. Is the contemporary practice of recognition of new states hence, in view of these facts, sustainable? This study concludes that it is not. If postcolonial international society is to remain a community of sovereign equals, then it is doubtful that there is a sustainable basis for recognition of new states other than the one suggested by the nineteenth-century Anglo-American doctrine, de facto statehood. This contention has both normative and practical components. The normative one is that in the aftermath of decolonization self-determination as a positive right has in many cases yielded denial of self-determination in the original sense: it has forced those who relinquished loyalty to a particular state to be nevertheless part of that state - such as the various peoples of Bosnia, Georgia or numerous former colonies - while, at the same time, it has excluded from sovereignty those who have actually managed to form and maintain their own state-like body - like the people of Somaliland or Abkhazia. The practical component is that states whose governments are not able to thwart secessions yet do not consent to loss of any of their territory are destined to endure permanently unsettled conflict (e.g. Georgia) or require massive and long-lasting foreign involvement to keep them together (e.g. Bosnia). The latter will require some coercive intervention against breakaway parties and may well not do without international administrative arrangements that hark back to the paternalism of colonialism. Overview of Existing Literature I have indicated the tradition of thinking about world politics this dissertation hopes to cultivate, but not what from the existing, relatively small, scholarship on the topic it wants to elaborate on. Martin Wight's work on international legitimacy, though very erudite and suggestive, took the form of only a twenty-page paper.35 It is, therefore, understandable that it could not deal with all the complexities behind the shifts in international constitutive norms. James Mayall's volume on nationalism and 3 4 Wight, 'International Legitimacy', p. 160. 20 international society devotes only a bit more space to the shifts - a major part of his book is devoted to the role of economic as opposed to political nationalism.36 Whereas a general picture of changes in international legitimacy can be constructed out of these and several other essay-length treatments,37 detailed empirical studies of recognition as an institutionalized practice are scarce. Out of those, the period of decolonization has unquestionably received most attention. The work of Robert Jackson examines the normative and other aspects behind recognition of former dependencies after 1945 and demonstrates that the key to establishment of new countries in Africa, Asia, Oceania and the Caribbean was the mounting illegitimacy of colonial rule and the rapidly growing belief that the right of self-determination must apply to any and every dependency.38 The substantive coherence of prospective states, hitherto an essential factor in recognition, played virtually no role, with disastrous consequences for many of them. Still, Jackson shows that no matter how bad the internal conditions in these fragile states might have been, all of them without exception survived, not least thanks to their sovereign rights in international law. In a number of cases this was accomplished by non-recognition of secessionist would-be states, even if those had managed to become substantial empirical realities.39 3 5 His essay 'International Legitimacy' was originally published, in a moderately longer form, in International Relations, 4 (1972), pp. 1-28. 3 6 James Mayall, Nationalism and International Society (Cambridge: Cambridge University Press, 1990). 3 7 See Oyvind 0sterud, 'The Narrow Gate: Entry to the Club of Sovereign States', Review of International Studies, 23 (1997), pp. 167-184. 3 8 See Robert Jackson, 'Negative Sovereignty in Sub-Saharan Africa', Review of International Studies, 12 (1986), pp. 247-264; Robert Jackson, 'Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World', International Organization, 41 (1987), pp. 519-549; and Robert Jackson, 'The Weight of Ideas in Decolonization: Normative Change in International Relations', in Judith Goldstein and Robert Keohane (eds.), Ideas and Foreign Policy: Beliefs, Institutions and Political Change (Ithaca, NY: Cornell University Press, 1993). 3 9 See Robert Jackson and Carl Rosberg, 'Why Africa's Weak States Persist: The Empirical and Juridical in Statehood', World Politics, 35 (1982), pp. 1-24; Robert Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990); and Robert Jackson; 'Juridical Statehood in Sub-Saharan Africa', Journal of International Affairs, 46 (1992), pp. 1-16. 21 Other periods received less attention. The beginnings of national self-determination as a factor in recognition decisions during the nineteenth century are particularly unexplored and shrouded in mystery. Wight's essay, for example, jumps from the founding of the United States virtually directly to the end of the First World War. Though the international society tradition is, just as the larger IR discipline, routinely accused of eurocentrism,41 its research has focused primarily on the recognition and admission into international society of non-European states,42 not those of Europe or the Americas.43 Consider this brief comment on international legitimacy in Hedley Bull's most elaborate study of the society of states. Using Wight's definition of the term, he wrote: Before the American and French Revolutions...states were, for the most part, hereditary monarchies...After the American and French Revolutions the prevailing principle of international legitimacy ceased to be dynastic and became national or popular: that is to say, it came to be generally held that questions of this sort should be settled not by reference to the rights of rulers, but by reference to the rights of the nation or the people. The dynastic marriage, as the means whereby acquisition of territory was made internationally respectable, gave place to the plebiscite; the patrimonial principle to the principle of national self-determination. The actual course of events was no more determined by the national or popular doctrine of international legitimacy than in the earlier period it had been determined This applies also to the post-cold war period. One essay that analyzes the most recent developments in the practice is Rick Fawn and James Mayall, 'Recognition, Self-Determination and Secession in Post-Cold War International Society'. 4 1 This includes even scholars broadly sympathetic to the tradition. See, for example, Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002); and Hidemi Suganami, 'British Institutionalists, or the English School, 20 Years On', International Relations, 17 (2003), pp. 253-271. 4 2 The two terms are not interchangeable. While all cases of recognition of a new state are also admissions into international society, the reverse is not true. Political communities such as the Ottoman Empire, Japan, China, Siam Persia or Ethiopia were never considered, and therefore never recognized, as 'new states' - they were regarded by the Euro-Atlantic world to be old countries. Their admission into the society of states was signified by their new treatment as equal sovereign states in positive international law. Their previous lack of full international legal personality had made them stand outside of the society of states. In contrast, recognition of a new state, the subject of this dissertation, is acknowledgment of a changed juridical situation within the society of states and positive international law. In other words, some 'old' state or states must have previously had sovereign status over the new state's territory. 4 3 In addition to Jackson's work, see Hedley Bull and Adam Watson (eds.), The Expansion of International Society (Oxford: Clarendon Press, 1984); Gerrit W. Gong, The Standard of "Civilization " and International Society (Oxford : Clarendon Press, 1984); and Yongjin Zhang, 'China's Entry into International Society', Review of International Studies, 17 (1991), pp. 3-16. Bull and Watson's volume, despite its general title, does not contain any contributions on the new European countries of the nineteenth century or those recognized in 1918-1919, though Watson does have a chapter on 'New States in the Americas.' Nineteenth-century Europe is also missing from Peter Lyon's, 'New States and International Order', in Alan James (ed.), The Bases of International Order: Essays in Honour of CA. W. Manning (London: Oxford University Press, 1973). One recent exception in this relative neglect is Yannis Stivachtis, The Enlargement of International Society: Culture Versus Anarchy and Greece's Entry into International Society (Basingstoke: Macmillan, 1998). 22 by the dynastical or monarchical one, but these doctrines did determine the kind of justifications that could be offered for whatever was done.44 If the justifications given did not correspond to the actual reasons for recognition of numerous new states in Europe and the Americas, what did in fact determine their admission into the society of states? And if the actual reasons were indeed different from the stated ones, why did those in charge of foreign policy gradually go to greater and greater lengths to devise the latter? Cannot it be that some established states identified or came to identify with the new idea? Structure of the Dissertation The early parts of the thesis attempt to answer these questions. The opening chapter considers recognition and non-recognition of new states up to 1815. It looks at the response of the established states to claims that were at odds with those based on dynastic rights. Particular attention will be paid to acknowledgment of the United States and the deliberations of, and verdicts made at, the Congress of Vienna with respect to the restoration of monarchies that had been replaced by a network of French satellite states between 1792 and 1814. Chapter 2 is key to this inquiry. It examines the birth of the Anglo-American de facto recognition doctrine, which came in response to the claims of statehood emanating from Latin America but was part and parcel of a larger confrontation between the liberal pluralist and conservative solidarist notions of international society. Chapter 3 charts the implantation of the de facto doctrine and the corresponding displacement of dynastic legitimacy throughout nineteenth-century European practice. Chapter 4 explores Woodrow Wilson's reformulation of self-determination as a positive international right as well as its narrow impact on recognition of new European states after the First World War. It also looks at the emergence of the Stimson Doctrine, which stipulated, inter alia, non-recognition of states created on the heels of cross-border use of force. Chapters 5 and 6 focus on the entrenchment of self-determination as a positive right after 1945: decolonization and its aftermath and the emergence of new European and Central Bull, The Anarchical Society, p. 33. 23 Asian countries since the end of the Cold War. The conclusion summarizes the main findings of the thesis and offers some reflections on the direction of current practice. 24 CHAPTER 1: STATE RECOGNITION PRIOR TO 1815 To ascertain the precise historic origin of complex international practices is notoriously difficult. This is because incidence of sharply conspicuous 'clean slates' is quite rare in world politics. Even shifts that are in retrospect judged as tectonic usually materialized only following a long gestation period. Major disruptive events do happen, but international change is typically cumulative and institutional: more often than not it consists of incremental and protracted institutionalization of new ways of doing things and gradual abandonment of old ones.1 The displacement of political authority of the Holy Roman Empire and the papacy by that of the sovereign states - the great transformation from the medieval to modern world - was this type of change as well. While Martin Wight finds some evidence of modernity as early as the Council of Constance (1414-18), F .H. Hinsley argues that we can talk about a fully-formed system of independent states no earlier than the beginning of the eighteenth century.2 The current debate about the significance of the Treaties of Westphalia (1648),3 conventionally understood as ushering in sovereignty as a new mode of political and legal organization, illustrates the hazards of operating with images of total and absolute historical breaks. Supposing that Westphalia was more than an important milestone in the evolution of modern statehood and state system ignores, for example, that until 1806 countries of Europe and the German principalities forming the Holy Roman Empire considered the ultimate constitutional authority to be vested in the Empire, not the individual principalities with differentiated and unequal authority. Mindful of possible pitfalls in being too categorical about the exact date of origin of institutions, it seems that two points can be made about the early phase of recognition of new states. 1 See K.J. Holsti, Taming the Sovereigns: Institutional Change in International Politics (Cambridge: Cambridge University Press, 2004), ch. 1. 2 See Martin Wight, 'The Origins of Our States-System: Chronological Limits', in Systems of States; and F.H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States (Cambridge: Cambridge University Press, 1963), ch. 8. 3 See Stephen Krasner, 'Westphalia and Al l That', in Judith Goldstein and Robert Keohane (eds.), Ideas and Foreign Policy: Beliefs, Institutions and Political Change (Ithaca, New York: Cornell University Press, 1993); Derek Croxton, 'The Peace of Westphalia of 1648 and the Origins of Sovereignty', The International History Review, 21 (1999), pp. 569-591; Stephane Beaulac, 'The Westphalian Legal Orthodoxy - Myth or Reality?', Journal of the History of International Law, 2 (2000), pp. 148-177; and Andreas Osiander, 'Sovereignty, International Relations, and the Westphalian Myth', International Organization, 55 (2001), pp. 251-287. 25 It could emerge as a full-fledged and discrete practice only once European countries came to regard themselves as forming a larger club of formally like entities and once positive law of this club gained a distinct foothold over natural law as its defining institution. Historically, the first condition preceded the second one. In 1758 Emmerich de Vattel wrote in The Law of Nations that: Europe forms a political system in which the nations inhabiting this part of the world are bound together by their relations and various interests into a single body. It is no longer, as in former times, a confused heap of detached parts, each of which had but little concern for the lot of others, and rarely troubled itself over what did not immediately affect it. The constant attention of sovereigns to all that goes on, the custom of resident ministers, the continual negotiations that take place, make of modern Europe a sort of republic, whose members -each independent, but all bound together by a common interest - unite for the maintenance of order and the preservation of [state] liberty. This is what has given rise to the well-known principle of the balance of power, by which is meant an arrangement of affairs so that no state shall be in a position to have absolute mastery and dominate over others.4 But Vattel's principal focus still remained natural law, even though he gave more due to state practice and customary and treaty law than earlier writers on the law of nations such as Grotius, Pufendorf or Wolff. In contrast, the first writings on recognition of new states can be traced to the German jurists Jacob Moser (1778), Johann von Steck (1783) and Georg-Friedrich von Martens (1789) who clearly were legal positivists and whose analytical concern was predominantly state practice.5 Why did these works begin to appear when they appeared? Charles Alexandrowicz, a distinguished historian of international law, gives this explanation: The need for sorting out state practice in the field of recognition and for ascertaining certain principles presented itself during the period of the gradual decline of dynastic legitimism. With the occurrence of frequent changes in membership of the family of nations and with the appearance of new forms of government and the corresponding conflicts between the new state and mother state.. .third powers started looking for legal guidance and recognition came 4 Vattel, The Law of Nations, Book III, Chapter III, Paragraph 47, p. 251; Abbe Saint-Pierre wrote in the wake of the Treaty of Utrecht (1713) very similarly that "...the powers of Europe constitute a kind of whole, united by identity of religion, of moral standard, of international law; by letters, by commerce, and finally by a species of balance which is the inevitable result of all these ties and, however little any man may strive consciously to maintain it, is not to be destroyed so easily as many men imagine." See 'Abstract and Judgment of Saint-Pierre's Project for Perpetual Peace (1756)', in Stanley Hoffmann and David Fidler (eds.), Rousseau on International Relations (Oxford: Clarendon Press, 1991), pp. 55-56. 5 C.H. Alexandrowicz, 'The Theory of Recognition In Fieri', in The British Year Book of International Law 1958 (London: Oxford University Press, 1959), pp. 180-187. 26 to claim a separate chapter in the treatises of international law which it did not enjoy in the works of the great classical writers of the late naturalist and earlier positivist period.6 Dynastic legitimacy - the clearly prevalent, though not the only way of justifying both domestic government and numerous international rights - and its corollary of strong, if not absolute, monarchical power, began to crack in the second half of the eighteenth century under the growing impact of political liberalism. Liberal thinkers such as Locke, Montesquieu, Spinoza, Voltaire, Rousseau, Kant and their intellectual followers deemed the people, not the sovereign monarch, to be the source of political authority. Because human beings were thought to possess the faculties of reason and judgment, they were also capable of determining political direction of their countries. This made the office of absolute monarch at best obsolescent and at worst oppressive. Government was to be based, according to liberals, on the will of those living under it and not, as theorists of royal authority such as Jean Bodin or Robert Filmer would have it, on the generosity and patronizing benevolence of kings towards their subjects. States could have no other foundation, Locke's Second Treatise of Government asserted, "but the consent of the people."7 Perhaps the most thorough faith in individual reason is to be found in Immanuel Kant's political theory. Kant's starting point was the observation that while causal laws may affect our body, they do not affect our minds and inner selves. We are not cogs in the wheels of natural or social forces: to be free means that we can reason and make choices. Kant argued that without volition of one's course of life it is impossible to speak of morality at all. The essence of human beings is their capacity for self-determination: they are autonomous beings and, as such, can select from a multitude of beliefs and courses of action. They can act rightly or wrongly, properly or improperly but, at all times, they must be allowed to choose.8 6 Ibid.,?. 196. 7 John Locke, 'Second Treatise of Government', in John Locke, Two Treatises of Government, ed. by Peter Laslett (Cambridge: Cambridge University Press, 1988), p. 384. 8 See Isaiah Berlin, 'Kant as an Unfamiliar Source of Nationalism', in Isaiah Berlin, The Sense of Reality: Studies in Ideas and their History, ed. by Henry Hardy (London: Pimlico, 1996). 27 The worst that one can do to human beings is to deny them their free choice. Kant forcefully rejected all paternalism in politics. Under "a paternal government" the subjects are obliged to "behave purely passively and to rely upon the judgment of the head of state as to how they ought to be happy, and upon his kindness in willing their happiness at all ." A government of the benevolent ruler who treats his subjects "as immature children who cannot distinguish what is truly useful or harmful to themselves...is the greatest conceivable despotism." "The only conceivable government" for Kant was one in which "everyone in the state... regards himself as authorized to protect the right of the commonwealth by laws of the general wil l , but not to submit it to his personal use at his own absolute pleasure. This right of freedom belongs to each member of the commonwealth as a human being, in so far as each is a being capable of possessing rights."9 While it cannot be concluded that liberal philosophers, i f they addressed themselves to the problem at all, promoted unrestricted disruption of the existing states by self-determining groups of people, it may be said that they rejected the notion of the state as dynastic possession. " A state, unlike the ground on which it is based, is not a possession," Kant wrote in Perpetual Peace (1795). "It is a society of men, which no one other than itself can command or dispose of." 1 0 As with the exact emergence of the modern society of states or sovereignty as an international institution, the first appearance of liberal constitutional ideas in interstate relations is not a settled matter. As early as 1774, Russia and the Ottoman Empire, conventionally regarded as among the most oppressive countries of the time, agreed in Art. 3 of the Treaty of Kutchuk-Kainardji that "all the Tartar peoples ... shall without any exception, be acknowledged by the two Empires as free nations, and entirely independent of every foreign power, governed by their own sovereign, .. .elected and raised to the throne by all the Tartar peoples." The ruler of the Crimean Tartars was to "govern them according to their own ancient laws and usages" and the St. Petersburg and Constantinople 9 Immanuel Kant, 'On the Common Saying: 'This May be True in Theory, but it Does not Apply in Practice", in Immanuel Kant, Political Writings, ed. by Hans Reiss and trans, by H.B. Nisbet, 2 n d enlarged ed. (Cambridge: Cambridge University Press, 1991), p. 74. 1 0 Immanuel Kant, 'Perpetual Peace: A Philosophical Sketch', in Ibid., p. 94. 28 governments pledged to "acknowledge and consider the said Tartar nation, in its political and civil state, upon the same footing as the other powers who are governed by themselves..."11 However, Tartar independence was short-lived12 and this meant that, as with the unsuccessful movement for Corsica's independence,13 international society did not face a great challenge to its rules and norms of membership. The American Revolution and the French Revolutionary Wars, especially their Napoleonic phase, did represent such a test. This chapter therefore focuses on the recognition of the United States and the Congress of Vienna, which followed the defeat of France. It shows that while US independence was justified in novel terms, its admission into international society was accommodated by prevailing norms. Apart from France, all states acknowledged the United States only after it had become obvious that Britain was going to forfeit its sovereignty over the secessionist republic. Though recognition of new states was not a well-defined practice at the time - one had to reach for precedents all the way back to the acknowledgment of the Dutch Republic, Switzerland and Portugal in the mid-seventeenth century14 - there was a distinct sense it would be against the existing state rights to acknowledge sovereignty of a country's territory prior to that country's renunciation thereof. In contrast, the network of new satellite states, which were part and parcel of the French "system of conquest,"15 posed a fundamental challenge to the rules of membership in the family of nations. !' Treaty of Kutchuk-Kainardji, July 21, 1774, M.S. Anderson (ed.), Documents of Modern History: The Great Powers and the Near East 1774-1923 (London: Edward Arnold, 1970), pp. 9-14. 1 2 The Tartars were unable to form a durable government or gain wider international recognition. Their khanate was in fact gripped by constant disorder and factional struggles ever since it had declared independence from the Ottoman Empire in 1772. The Porte interfered in Tartar affairs and, according to Russia, "was beginning to exercise sovereign power over the Tartar lands." With the explanation that "this act destroys our former obligations regarding the liberty and independence of the Tartar peoples," the Russia annexed the Tartar-inhabited Crimea in 1783. See Catherine IPs Manifesto, April 19, 1783, Ibid., pp. 14-15; Russia occupied the peninsula in the war that ended in 1774 and if the Tartars themselves could not now govern it, the Turks were to be prevented from acquiring it. 1 3 The unruly Genoese territory was ceded to France in a bilateral Treaty of Versailles (1768). The ensuing anti-French uprising was defeated a year later. 1 4 See Jochen A. Frowein, 'Transfer or Recognition of Sovereignty - Some Early Problems in Connection with Dependent Territories', The American Journal of International Law, 65 (1971), pp. 568-571. 1 5 This term appears in the preamble of the Second Treaty of Paris. See Definitive Treaty of Peace between Great Britain, Austria, Prussia, and Russia, and France, November 20, 1815, Edward Hertslet (ed.), The Map of Europe by Treaty [hereafter MET], Vol. 1 (London: Harrison and Sons, 1875), p. 343. 29 Conquest as such was legal, but its unrestricted character between 1792 and 1814 threatened the very survival of the society of states as it disrupted the independence of most continental states. The Vienna settlement rejected the legitimacy of all satellite states created in the wake of France's external use of force and, with a few exceptions, restored the pre-revolutionary states with their old dynasties. Recognition of the United States of America On July 4, 1776 the representatives of thirteen British colonies of North America in the Second Continental Congress proclaimed independence of the United States of America. Their move represented a culmination in the long-standing, intensifying political and in 1775-6 also military conflict with the British government. The US Declaration of Independence stated that (1) all men are created equal and are endowed with certain inalienable rights; that (2) governments are instituted to uphold and further these rights, and derive their just powers from the consent of the governed; that (3) when a form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government; and that (4) while, crucially, "governments long established should not be changed for light and transient causes," it may in "the course of human events [become] necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and nature's God entitle them."16 After listing "repeated injuries and usurpations" committed by King George TH, the declaration proclaimed that the thirteen colonies "are, and of right ought to be free and independent states," "are absolved from all allegiance to the British crown," and "all political connection between them and the State of Great Britain, is and ought to be totally dissolved." It concluded then by stating that as "free and independent states, they have full power to levy war, conclude peace, contract 1 6 Declaration of Independence, July 4, 1776, Thomas Jefferson, Selected Writings, ed. by Harvey C. Mansfield (Wheeling, Illinois: Harlan Davidson, 1979), pp. 7-11. 30 alliances, establish commerce, and to do all other acts and things which independent states may of right do." The phrase "may of right do" implied that the United States considered itself to be bound by the law of nations, and the entire sentence that its relations with Great Britain would henceforth be governed by this law and not municipal law of the British Empire. 1 7 But the British authorities spoke of the newly-proclaimed entity as its 'colonies in a state of rebellion,' categorizing it as such already in August 1775. They were by now fully engaged in an armed campaign to re-establish direct imperial rule. No foreign country accepted the US claims. None looked upon the situation as anything other than civil war. But whereas public endorsements for the American cause were not forthcoming, there were states that might welcome the prospect of US independence, or at least a prolonged war of independence against the British. Chief among these was France. The government of Louis X V I long resented the hegemonic position of Great Britain overseas and its unduly strong influence on the continent, both of which came mainly at France's expense. The humiliation was dated to the 1763 Treaty of Paris which, even as ending the Seven Years War, stripped France of almost all its possessions in the western hemisphere. The French government was eager to see Britain weakened, its territory overseas reduced and the balance of power restored. A close ally of France in this endeavour was the fellow Bourbon kingdom of Spain, which, though less than France, had also suffered territorial losses at the hands of Britain in the eighteenth century. The Americans tried from the very beginning to exploit the anti-British sentiments. American foreign relations got their first institutional expression in November 1775 when the Second Continental Congress established a Committee of Secret Correspondence (in April 1777 renamed 'Committee for Foreign Affairs'), the purpose of which was to gain support abroad for the American cause. As early as March 1776 it sent an agent to France to arrange purchase of various military 1 7 Edward Dumbauld, 'Independence under International Law', American Journal of International Law, 70 (1976), pp. 425-426. 31 supplies and to find out under what conditions "if the colonies should be forced to form themselves into an independent state, France would...acknowledge them as such, receive their ambassadors, enter into any treaty or alliance with them for commerce or defence, or both."18 In September the Congress proceeded to appoint three commissioners to the court of France to negotiate on these issues. In addition, they were directed by the Congress to approach ambassadors of other countries residing in France "to obtain from them a recognition of our independency and sovereignty, and to conclude treaties of peace, amity, and commerce between their princes or states and us."19 These instructions make apparent that the Americans understood from the very beginning that they needed to ask foreign states for acknowledgment and that they saw it as the pre-condition of their relations with the outside world as a sovereign state. The anti-British sentiment in France and Spain, potent as it was, did not translate itself into any automatic recognition of the US. While the French government officials communicated with the American commissioners and decided to provide them with secret military assistance indirectly through a private company, and Spanish ports remained opened to American merchant ships and privateers, they were reluctant to do more. Comte de Vergennes, the French minister of foreign affairs, argued in a March 1776 paper submitted to and approved by Louis XVI that French recognition of the US would be premature while the Americans had been mere insurgents and not a group with effective possession of territory: It would not be in keeping with the dignity of the king, nor in his interest, to make a pact with the insurgents.. .This pact, in fact, would only be worthwhile insofar as they make themselves independent and do not find it in their interest to break it, as the system does not change into an administration both mobile and necessarily unstable... Such an arrangement can only be solidly based in mutual interest, and it seems that it will only be time to decide this question when the liberty of English America has acquired a positive consistency. Committee of Secret Correspondence: Instructions to Silas Deane, March 3, 1776, Mary A. Giunta (ed.), Documents on the Emerging Nation: US Foreign Relations 1775-1789 (Wilmington, DE: Scholarly Resources, 1998), p. 6. 1 9 Additional Instructions to Benjamin Franklin, Silas Deane, and Arthur Lee, Commissioners from the United States to the King of France, October 16, 1776, Francis Wharton (ed.), Revolutionary Diplomatic Correspondence of the United States, Vol. 2 (Washington, D.C.: Government Printing Office, 1889), p. 172. 3 2 His initial conclusion was ambivalent. He thought that "it is perhaps problematical whether [the Bourbon monarchies] should desire the subjection or the independence of the English colonies" and was concerned that "they find themselves threatened in either hypothesis." France and Spain were threatened both by the prospect of a quick defeat of the insurgents - this would perpetuate Britain's colonial and maritime supremacy - and by helping the Americans, thus being exposed to the wrath of the colonial power. The most advantageous course of action was to encourage "the continuation of the war" which would tie down British resources, but at the same time "persuade the English ministry that the intentions of France and Spain are pacific, so that it does not fear to embark upon the operations of a brisk and expensive campaign" and then turn against the two kingdoms.20 A shift towards clear, though not yet public, support for independence was signalled in an April report by Joseph de Rayneval, the first secretary to Comte de Vergennes. While Rayneval agreed with his superior on the proposed course of action, he argued that France should support the independence of the colonies. He believed that "in whatever manner Great Britain maintains her supremacy in America, there will always be considerable advantages for her in it, while by losing it she would suffer an inestimable injury which will also be permanent."21 He did not think France could avoid an armed confrontation with Britain and advocated open support for the colonies when it was apparent that they had been able to succeed on the battlefield and when France was ready to "strike decisive blows" to the British forces. Rayneval also considered Spanish worries that an independent US may endanger dynastic legitimacy, particularly in Spain's American dominions. Interestingly, he dismissed these concerns. The menace was understood in terms of a potential expansion that would spread revolutionary universalistic ideology, but de Rayneval believed, together Comte de Vergennes: Considerations on the Affairs of the English Colonies in America, March 12, 1776, Giunta, Documents of the Emerging Nation, pp. 18-24. The paper was drawn up before the US Declaration of Independence, but almost a year after the battles of Concord and Lexington, that is when Britain's authority was already under significant challenge in the thirteen colonies. 2 1 Joseph Matthias Gerard de Rayneval: Reflections on the Situation in America, April 1777, Giunta, Documents of the Emerging Nation, pp. 24-29. 33 with many contemporaries, that republican systems of government are inherently peaceful and primarily inward-oriented: It will be said the independence of the English colonies will set the stage for a revolution in the New World; scarcely will they be at peace and assured of their liberty, when they will be seized with the spirit of conquest; whence could result the invasion of our colonies and of the rich possessions of Spain in South America. But two considerations seem capable to reassure those who have such fears: (1) the war in which the colonies are now engaged will exhaust and impoverish them too much for them to be able to think soon of taking up arms to attack their neighbours; (2) there is good reason to think that if the colonies achieve their aim, they will give a republican form to their new government; now it is generally held, from experience, that republics rarely have the spirit of conquest, ...that they know the pleasures and advantages of commerce and that they have need of industry, and consequently of peace to procure for themselves the conveniences of life... Rayneval completed the discussion of this theme by reassuring Vergeness that "even supposing that the colonies will encroach upon the Spanish possessions, nothing is less proved than that this revolution would be prejudicial to France."22 The US commissioners in France spent the year 1777 seeking to obtain French and Spanish recognition and treaties of friendship and commerce23 and the French government contemplating what further steps - beyond official non-recognition of the US and its commissioners and limited material aid - to take. No prospects of advantage vis-a-vis the British could prod Spain to acknowledge the Retrospectively, this is a remarkable statement. Historians have well established that the enormous costs of the French participation in the US war of independence contributed significantly to the subsequent near-bankruptcy of the French treasury and the downfall of ancien regime in 1789. No less remarkable is that French minister of finance Anne-Robert-Jacques Turgot actually predicted the collapse of public finances should his country assist the Americans and thus, in all probability, invite an all-out war with Britain. He believed that a British victory over the rebels would in fact be good for France as it would force Britain to commit large military resources for policing its defiant colonies. For these reasons he strenuously opposed Vergeness and Rayneval. The latter two won the dispute and Turgot was ousted from his office in May 1776, but the episode shows that there was absolutely nothing pre-ordained about French policy toward the insurgent British colonies, and that state interests are matter of argument and debate rather than being naturally given or otherwise pre-determined. 2 3 The appeals of the commissioners to the French and Spanish governments are notable for being formulated in the language of contemporary world of states and for the absence of vocabulary of the US Declaration of Independence. The three wrote to Vergennes in January 1777 that "North America is.. .ready to guarantee in the firmest manner to [France and Spain] all their present possessions in the West Indies, as well as those that they shall acquire from the enemy in a war that may be consequential of assistance [to North America]. The interest of the three nations is the same." Despite the negative attitudes of America's founders towards intrastate conquest as such, there was a pledge of acceptance of French and Spanish conquests at from Britain. In March the commissioners reported to the Committee of Secret Correspondence that they had explained "the utility to France that must result from our success in establishing the independence of America." See American Commissioners to Comte de Vergennes, January 5, 1777 and American Commissioners to Committee of Secret Correspondence, March 12, 1777, Giunta, Documents of the Emerging Nation, pp. 32, 38. 34 United States: despite its animosity toward Britain, the Spanish government had consistently believed that Americans were rebels against a lawful monarch. In contrast, by the end of the year France had become firmly convinced that the only viable policy was to support US independence. Besides the fact that assistance to North America became known to Britain and raised tensions with its government to a critical level and, just as Rayneval had predicted, war seemed unavoidable, the Americans were able to secure several major military victories. The battle of Germantown in early October and, even more crucially, the defeat of General Burgoyne's army at Saratoga later that month turned out to be of signal importance. French diplomatic documents reveal that following the battle of Saratoga the royal government reached the judgment that the Americans had shown the ability to set up and defend their state. Conrad Gerard, Vergennes' under-secretary, communicated to the US commissioners that "the king, henceforth persuaded that the United States were resolved to maintain their independence, had decided to cooperate efficaciously in maintaining it and in making it firmly established."24 He told them that Louis XVI had an "essential interest in weakening his natural enemy, and that this sensible and permanent interest would henceforth render the cause of the Americans common to France." France recognized the United States on February 6, 1778 when Gerard was directed to sign two treaties with the US commissioners. The purpose of the treaty of alliance (the other was treaty of amity and commerce) was "to maintain effectually the liberty, sovereignty and independence" of the United States.25 In the case of war between France and Britain the parties agreed that neither shall "lay down their arms until the independence of the United States shall have been formally or tacitly assured by the treaty or treaties that shall terminate the war."26 2 4 Conrad Alexandre Gerard: Report of Conference with the American Commissioners, January 9, 1778, Giunta, Documents of the Emerging Nation, pp. 52-58. 2 5 Treaty of Alliance Eventual and Defensive, February 6, 1778, Jonathan Dull, A Diplomatic History of the Revolution (New Haven, CT: Yale University Press, 1985), pp. 165-169. 2 6 Consistent with previous attempts of the Americans to formalize its relations with France, one would search in vain in the agreement for principles embodied in the US Declaration of Independence. In Arts. 5-7, in fact, the parties respectively agreed on the geographical areas of possible territorial acquisitions and in Art. 11 France guaranteed to the Americans "the additions or conquests that their confederation may obtain during the 35 Can one trust French explanations that the news of the victory at Saratoga had been decisive in France's decision to recognize the United States? Some historians doubt it and put forward other factors: the completion of France's rearmament, the deterioration of Franco-British relations, or the threat of possible US-British reconciliation.27 According to this view, Saratoga offered an opportune moment for France to trigger a war with Britain. However, even if this belief is partially true - and there is no reason to think that the three above factors were necessarily absent - there are at least two reasons why the significance of Saratoga should not be discounted. First, France had time and again insisted that it would recognize the United States only when it saw evidence of empirical statehood. While one could, of course, doubt whether the North American states were, to quote Gerard, "truly in possession of their independence," it is much more difficult to make the case that Saratoga was used as pure window-dressing. France had to give reasons for its actions not only to its archenemy, Britain, but also to its closest friend, Spain. The other member of the Bourbon Family Compact hoped the war in North America would weaken Britain, not establish a new state that could undermine the rights of existing monarchies. It refused to entertain recognition of the US. Yet French justifications given to Britain and Spain were at the core very similar. In January 1778 Louis XVI wrote to his uncle Charles HI of Spain that "the recent destruction of Burgoyne's army and the imperilled state of [British commander in chief] Howe have recently made a total change in the relations of the parties. America is triumphant...the impossibility of [her] being subdued by arms being now demonstrated."28 In March, the French ambassador in London submitted to the British a pro memoria, informing them that France and the US had signed the treaty of amity and commerce as the US had war from any of the dominions now or heretofore possessed by Great Britain in North America." In a secret addendum to the treaty France promised to seek Spanish accession to the alliance, something Spain had to the frustration of both countries repeatedly refused. 2 7 Dull, A Diplomatic History of the Revolution, pp. 91-5. 2 8 Louis XVI to the King of Spain, January 8, 1778, Wharton, Revolutionary Diplomatic Correspondence, Vol. 2, p. 467. 36 been in full possession of independence proclaimed by their declaration of July 4, 1776. In its reply, Britain did not seek to rebut this proposition. Instead, George HI classified France's conduct as "an aggression on the honour of his crown and the essential interests of his kingdom, .. .subversive of the law of nations, and injurious to the rights of every sovereign power in Europe."30 France responded to this accusation by appealing to the "incontestable principle of public law" that the fact of the effective possession of US independence was enough to justify the king to sign treaties with the United States without examining the legality of that independence. Neither the law of nations, nor treaties, nor morality, nor policy imposed upon Louis XVI the obligation to become the guardian of the fidelity of British subjects to their sovereign: it was sufficient that the colonies had established their independence, not merely by a solemn declaration, but also in fact, and had maintained it against all the efforts of the mother country. The French response continued that this was the position of the United States when the king began to negotiate with US representatives and that France was free to consider them as an independent country or as subjects of Great Britain. The king had chosen the first alternative because his safety, the interests of his people, and the secret projects of the court in London obliged him to do so. France was bound neither to assist Britain against the colonies nor to repulse them when they presented themselves to Louis XVI as an independent people. It had a right to consider them as such primarily because their former sovereign had shown by long efforts the impossibility of reducing them to obedience.31 Clearly, the parties operated with what they understood to be existing legal principles: that of empirical statehood and positive dynastic rights. None denied the validity of either principle as such; the quarrel rather was which one was to apply in the American case of secession from a sovereign 2 9 Declaration of the French Ambassador to the Court of London, March 13, 1778, Annual Register for the Year 1778 (London: J. Dodsley, 1778), p. 291. 3 0 Message from George III to both Houses of Parliament, March 17, 1778, Ibid., p. 290. 3 1 Observations of the Versailles Court in relation to the British Justificatory Memoir, 1779, Wilhelm G. Grewe (ed.), Sources Relating to the History of the Law of Nations, Band 2, Vol. 2 (Berlin: Walter de Gruyter, 1988), pp. 448-450; Importantly, French intra-governmental communications contain a similar explanation. See Vergeness to Gerard, Memoir to Serve as an Instruction to Mr. Gerard, Secretary of the Council of State, about to go as the Representative of the King to the General Congress of the United States, March 29, 1778, Wharton, Revolutionary Diplomatic Correspondence, Vol. 2, pp. 523-526. 37 state. Though the records of the debate in the British House of Commons reveal that the French argument actually found sympathy among opposition members,32 no country sided with France. The prevalent international standard was dynastic legitimacy, which allowed a territorial or jurisdictional change only with consent of the affected monarch. France did refer to past instances when Britain had allegedly strayed from this norm - expressly citing Queen Elizabeth I's recognition of the Netherlands without prior Spanish recognition in the 1580s.33 But Britain disputed the accuracy of this reading of its history and retorted that "the king never acknowledged the independence of a people who has shaken off the yoke of their lawful prince."34 (italics added) It took the acknowledgement of its revolted subjects, irrespective of whether they were actually independent, as a casus belli and opened hostilities against France. The court of Louis XVI had to face the onset of war without having continental allies. Over-anxious Spain declined to join the Franco-US coalition. France's main diplomatic objective was to persuade Spain to declare war on Britain, especially after it had become obvious that the original coalition would not be able to bring a swift defeat of its adversary. France succeeded when it offered to fight until Spain recovered its former territories and reduced British presence in the Americas. In the secret Convention of Aranjuez of April 1779, Spain promised France to declare war on Britain. It is revealing to observe how the parties handled the issue of US independence. In Art. 4 the French king proposed, "in strict execution of the engagements contracted by him with the United States of America," that Spain recognize US independence and not lay down arms until Great Britain does the According to these records, a number of deputies urged immediate British recognition of the United States because the latter established independence "too firm to be shaken by our utmost efforts." See Annual Register for the Year 1778, p. 163. 3 3 See Henry Wheaton, History of the Law of Nations in Europe and America from the Earliest Times to the Treaty of Washington, 1842 (New York: Gould, Banks & Co., 1845), pp. 292-293. 3 4 The Justifying Memorial of the King of Great Britain in Answer to the Exposition of the Court of France, 1779, Annual Register for theYear 1779, p. 409. This paper was drawn up by Edward Gibbon, a famous historian of ancient Rome. 38 same. Spain refused to commit itself and reserved the right to make recognition a matter of bilateral bargaining with the Americans.3 5 The Americans were intent on seeking recognition directly from various countries. Besides France, they concentrated their efforts primarily, though by no means exclusively, at Spain, Russia and the Dutch Republic. Spain was, of course, the country closest to France and shared with it the hostility against Britain. Russia under Catherine II became a leading continental power. On the other hand, the Dutch Republic was a financial powerhouse and at least nominally shared with the Americans the republican system of government. The envoys to these states spent approximately two years each in the capitals of their appointment, yet with the exception of the emissary to the Netherlands (John Adams) they achieved very little. Spain's attitude towards the Americans in the early phase of the US war of independence was already discussed. American efforts in Madrid did not succeed in changing it. Spain declared war on Britain in June 1779, but its government declined to consider the United States as its 'ally,' instead preferring the term 'co-belligerent.' An ally could have been only an internationally legitimate country and as far as Spain was concerned, the United States did not meet this criterion. John Jay, the commissioner to Madrid, had to admit in frustration that Spain's war objectives "did not include ours" and its conduct as a whole was "not very civil to our independence."36 Russia did not support American claims of independence, but while Catherine the Great did not endorse either the legality or justice of the North American uprising, it equally refused George Ill's solicitation of direct military help and alliance.3 7 For the Americans, nevertheless, Russia's importance lay in the February 1780 proclamation of its armed neutrality, which was later joined by 3 5 Convention of Aranjuez, April 12, 1779, Wharton, Revolutionary Diplomatic Correspondence, Vol. 1, pp. 356-7. 3 6 Quoted in Richard B. Morris, The Peacemakers: The Great Powers and American Independence (New York: Harper & Row, 1965), p. 223; The Congress instructed Jay to inform Spain that in return for recognition the US was prepared to guarantee the Floridas to His Catholic Majesty if he succeeded in wrestling them from Britain. The nature of this bargain resembled the one offered to France, but Spain was unwilling to defy the norms of dynastic legitimacy. See Ibid. 3 Nikolai N . Bolkhovitinov, Russia and the American Revolution, trans, and ed. by C. Jay Smith (Tallhassee, FL: The Diplomatic Press, 1976), p. 11. 39 most neutral states of Europe in a grouping known as the League of Armed Neutrality. Its purpose was to resist efforts to suppress trade of neutrals with the belligerent powers. Because it was Britain that had done most seizures of neutral ships and their cargo, the policy effectively had an anti-British slant and an unintended consequence of aiding the Americans. Armed neutrality isolated Britain: it was alone in protesting against it. The Congress wanted to accede to the League of Armed Neutrality. The invitation to join, however, did not come. Besides being a warring party, the US was not acknowledged as an independent state by any of its signatories. The Continental Congress appointed Francis Dana as the minister to Russia in December 1780 to achieve support for US sovereignty and the adherence to armed neutrality. However, Dana never even presented his credentials to the Russian government. Russia and Austria were at the time involved in attempts to mediate an end to the war between Britain and its Bourbon adversaries, and Dana was persuaded by Vergennes, Franklin and Marquis de Verac, the French minister in St. Petersburg, that it was unlikely that Russia would compromise its function as an impartial mediator by recognizing US independence when that independence had itself been the crux of contention.38 Although, following a major American victory at Yorktown, Dana received instructions from Secretary for Foreign Affairs Robert Livingston not to fail "to make use of this intelligence which must fix our independence not only beyond all doubt, but even beyond all controversy," he agreed not to reveal his public character in Russia, but "to appear only as a private citizen of the United States."39 The Dutch Republic would be the only additional country to recognize the United States before Britain, but the process of reaching this decision was even more protracted than in the case of France and came around the time when the British cabinet itself admitted that US independence was 3 8 Indeed, in the mediation proposals during 1780 and 1781 the thirteen US states were referred to only as the •American colonies' by Russia and Austria. The mediation project, however, faltered because the Americans maintained they would not negotiate a peace treaty before being acknowledged as independent by Britain and Britain, in turn, insisting it could never consent to such a demand. See Boltovinov, Russia and the American Revolution, ch. 3. 3 9 Livingston To Dana, October 22, 1781 and Dana to the Count de Vergennes, March 31, 1781, Wharton, Revolutionary Diplomatic Correspondence, Vol. 4, pp. 802, 343. 40 the only plausible outcome of the war. The Congress was confident that the Dutch tradition of republican government would make recognition relatively unproblematic, but in the late 1770s and early 1780s that republicanism was not, at least as far as the central government in The Hague was concerned, easily discernible. Previously elective, the office of the Statdholder became permanently hereditary in 1747. William V of the House of Orange-Nassau, the statdholder of the day, was actually a close relative of George HI and pro-British. The Americans began their dealings in the Dutch Republic by seeking a large loan from private lenders. John Adams, later the second American president, obtained a commission from the Congress to borrow money, but after he had arrived in The Hague in August 1780 he was told that a loan would be difficult to negotiate until the States General (the country's parliament) recognized American independence.40 The situation seemed to offer more promise towards the end of 1780 as relations between Britain and the Dutch Republic sharply deteriorated. The British began seizing "contraband" Dutch ships bound for France, and in response the Hague government opted to join the League of Armed Neutrality. Citing that this would violate bilateral treaty commitments toward Britain and accusing the Dutch of planning to conclude a treaty with the United States, the British cabined declared war on the republic in December. But facing the same enemy did not mean, as in the case of Spain, that the Dutch were willing to acknowledge US independence. The central government feared a prolonged conflict with Britain and in March 1781 it accepted the Russian offer to mediate also the British-Dutch war. The mediation could hardly have proceeded if, in the middle of it, the Dutch would have recognized the Americans. Unlike his colleague Dana, however, Adams pressed immediately and publicly for his accreditation as the US minister in the Dutch Republic. His attempts repeatedly failed. Adams was told by the grand pensionary of Holland (an equivalent of the prime minister) that even though the United States and the Dutch Republic faced the same foe, recognition of US 4 0 James H. Hutson, John Adams and the Diplomacy of the American Revolution (Lexington, KY: The University Press of Kentucky, 1980), p. 78. 41 independence was "a matter somewhat delicate for the republic."4 1 Adams' memoranda and pleadings remained unanswered.42 Perturbed by his inability to make progress in obtaining a much-needed loan, achieving Dutch recognition or concluding a treaty of amity and commerce, the future US president suffered an apparent nervous breakdown.43 Adams' mission was saved by the intense struggle on the Dutch political scene and the help from French diplomacy. The government of the pro-British stadtholder was fiercely opposed by the Patriots, a liberal party advocating the return to the true republican roots of the country. The Patriots were pro-American and enjoyed widespread, i f uneven, support in the constitutionally strong Dutch provincial assemblies. This was a considerable advantage for the Americans because recognition of the new state would have to be endorsed by all seven provinces before it could be approved by the central government. To prevent possible reconciliation between Britain and the Dutch Republic, French ambassador in The Hague Due de la Vayguyon and Patriot representatives tried to influence provincial assemblies into voting for recognition. The Patriots even organized a petition campaign across the country to rally public opinion and put pressure on the provincial deputies.44 The campaign had galvanizing effects. Dutch recognition was, in the end, rather speedy - the entire process took less than two months. One province after another voted in support of the US and the stadtholder, according to Adams's dispatch to Livingston, declared that he had "no hopes of resisting the torrent, and therefore that he shall not attempt it." 4 5 After all the provinces had given their approval, the States General passed a resolution acknowledging the US as a sovereign state and admitting Adams as its minister plenipotentiary on April 19, 1782.46 4 1 J. Adams to the President of Congress, May 3, 1781, Wharton, Revolutionary Diplomatic Correspondence, Vol. 4, p. 398. 4 2 Hutson, John Adams and the Diplomacy of the American Revolution, p. 92. 4 3 Ibid., p. 98. 4 4 Ibid., p. 107. 4 5 J. Adams to Franklin, March 26, 1782, Wharton, Revolutionary Diplomatic Correspondence, Vol. 5, p. 275. 4 6 Jan Nordholt, The Dutch Republic and American Independence, trans, by Herbert H. Rowen (Chapel Hill, NC: The University of North Carolina Press, 1982), pp. 214-215. 42 That similarities in American and Dutch political values played a role in the decision is not easy to dispute. This is, for example, how Adams depicted the atmosphere in the country after Friesland, one of the provinces, had been the first to consent to US recognition on February 26: Friesland is said to be a sure index of the national sense. The people of that province have been ever famous for the spirit of liberty. The feudal system never was admitted among them; they never would submit to it, and they have preserved those privileges which all others have long since surrendered. The regencies are chosen by the people.. , 4 7 Adams clearly understood that the Dutch also saw in the United States an important future trading partner and that the pro-American enthusiasm, especially among urban merchants, could be attributed partly to commercial interests.48 But his communications, as well as those of other American officials, make obvious too that for all deep political rifts in the country there were many who sincerely shared American ideas of government, in particular liberty and the consent of the governed, and that this greatly contributed to the American success.49 As significant as the acknowledgments by France and the Dutch Republic were, they did not by themselves make the United States an internationally legitimate actor. This came only once Britain concluded a provisional peace treaty with its 'colonies in a state of rebellion' in November 1782: in its very first article the king acknowledged the United States of America as a sovereign, independent country and relinquished all claims to it "for himself, his heirs and successors."50 How did this decision come about? There were several reasons, but the most important seemed to be the inability of the British to defeat the Americans by force of arms. One might have had misgivings about the French contention that the Americans had possessed effective control of 4 7 J. Adams to Livingston, March 11, 1783, Wharton, Revolutionary Diplomatic Correspondence, Vol. 5, pp. 235-236. 4 8 See Ibid, as well as Address of the Merchants of the Town of Schiedam, in Holland, to His Excellency John Adams, after their High Mightiness the Lords the States-General of the United Provinces of the Netherlands Had acknowledged the Freedom and Independence of the United States of America, and admitted the said John Adams as Minister Plenipotentiary and Envoy of the Congress of the Said United States, attached to J. Adams to Livingston, July 5, 1782, Ibid., pp. 596-597. 4 9 Reacting to Adams' description of William Vs announcement that he could not oppose Dutch acknowledgment of the US, Livingston wrote that "no wise government, constituted as that of the United Provinces is, will venture long to oppose the wishes of the people." See Livingston to J. Adams, Wharton, Ibid., Vol. 5, p. 592. 5 0 The Preliminary Terms of Peace between Britain and The United States, November 30, 1782, Dull, A Diplomatic History of the American Revolution, pp. 170-174. 43 their territory in early 1778, but three and half years later there were only very few who doubted it. After the spectacular US victory at Yorktown in October 1781 the British, fighting simultaneously against three European powers, proved unable to mount a counter-offensive. But one should not underestimate also the opposition to the war that developed within the British parliament. While few advocated US independence as a solution to the war until late into its course, there were always those who accepted that at least some American claims had been just. Edmund Burke, a Whig member of parliament, belonged to the former group. He had criticized his government policy towards the American colonies since the 1760s and argued that its elements, primarily the lack of political representation by people in the colonies, actually violated the spirit of the British constitution. Once the war got under way, Burke thought that the Americans opted for secession from the crown only as a last resort and that to let them go would be better than to wage war against them. Such war was inevitably designed to subdue, and forced submission was denial of freedom for the subjugated as well as those doing the subjugation.51 Though Burke's views were initially highly unpopular and he was denounced as a traitor, following the loss at Yorktown, views like his would appear with a growing frequency. In February 1782 the ministry of Lord North lost its parliamentary majority and the House of Commons passed a motion which declared enemies of their country all those "who should advise, or in any way attempt to prosecute an offensive war in America for the purpose of reducing the colonies to obedience by force."52 The foreign and colonial secretaries in the new government, Charles James Fox and Lord Shelburne (from July 1782 the prime minister), both agreed that American independence had to be conceded. Their peace envoys in Paris were openly talking about acceptance of US independence already in mid-April, around the time of Dutch recognition and before the US-Dutch treaty of amity 5 1 Letter to the Sheriffs of Bristol, April 3, 1777, David P. Fidler and Jennifer M. Welsh (eds.), Empire and Community: Edmund Burke's Writings and Speeches on International Relations (Boulder, CO: Westview Press, 1999), pp. 155, 165. 5 2 Lord North to King, March 4, 1782, Sir John Fortescue (ed.), The Correspondence of King George the Third, Vol. 5 (London: Macmillan and Co., 1928), p. 376. 44 and commerce of October 1782. Given that Lord Stormont, the previous foreign secretary, remarked to Austria's ambassador as late as October 1781 that "the king of England would recognize the independence of the colonies when the French were masters of the Tower of London,"54 the decisive shift in the British position occurred rather quickly. Once the United States obtained acknowledgment of its parent country, first in the preliminary treaty of peace and then in the definitive treaty of peace signed in Paris in September 1783, other states did not see formal barriers to recognizing the new state and establishing diplomatic, trade and other relations. Sweden signed a treaty of amity and commerce with the Americans in April 1783, Prussia in 1785. Russia indicated that it would not object to establish diplomatic relations with the US after the signature of the definitive peace treaty. To sum up so far, the United States of America became widely recognized and thus admitted into international society only after it had become acknowledged as independent by its parent country. To treat it as a sovereign state before this acknowledgment was considered by most states to be a hostile act against Britain: a violation of the rights of the British crown. Such act was expected to engender the gravest of consequences, including a declaration of war by the injured state, and state recognition was therefore regarded as a matter of utmost sensitivity. France did not agree that its recognition of the United States constituted such a violation and instead explained its decision in terms of the principle of effective possession.55 Still, it is important to emphasize that from the very Richard Oswald's Journal, April 18, 1782, Mary A. Giunta (ed.), The Emerging Nation: A Documentary History of the Foreign Relations of the United States under the Articles of Confederation, 1780-1789. Volume One: Recognition of Independence (Washington, D.C.: National Historical and Records Commission, 1996), p.349. See also the Minute of Cabinet, attached to Lord Shelburne to the King, April 26, 1782, Fortescue, The Correspondence of King George the Third, p. 488. 5 4 Quoted in H.M. Scott, British Foreign Policy in the Age of the American Revolution (Oxford: Clarendon Press, 1990), p. 314. 5 5 The early writings on recognition referred to earlier in this chapter reflect this split. From the legitimist perspective, Steck observed that the declaration of independence was not enough for an entity to be sovereign, even if it managed to establish itself as de facto independent. The mother country had to renounce its sovereignty first and until it did so, no third power could recognize the independence of the new state. Premature recognition, in his view, amounted to a violation of the mother country's positive right against unsolicited foreign intervention. For Martens, on the other hand, a third party ought to acknowledge a new de facto state as sovereign irrespective of whether the mother country relinquished its sovereignty first. See Alexandrowicz, 'The Theory of Recognition In Fieri1, pp. 182-183, 185-186; While France's conduct was by 45 beginning states considered it essential to defend recognition of a new state in moral and legal terms and that they did not regard the act as merely 'political.' They felt impelled to appeal to common standards of the society of states. Even France, which did not deny political expediency in its public exchanges with Britain, did not want to act, and appear to be acting, arbitrarily. As much as France desired to weaken British power and prestige, its government nonetheless believed it could not have proceeded with US recognition had the Americans not been capable of pushing the British forces out from most of their territory. The American case revealed other important things in regards to recognition of new states. It demonstrated the fate awaiting unrecognized entities: before its acknowledgment and despite the assertions of the Declaration of Independence, the United States could not sign international treaties, have diplomatic relations, form military alliances, raise foreign loans, join international organizations, or benefit from regularized trade and commerce. Its survival depended almost solely on its internal strength. It could not claim successfully protection of state rights as they were interpreted at the time by states; though, as the cases of Poland or Genoa later demonstrated, these rights would not always be a perfect shield for recognized states either. The US case also demonstrated the centrality of great powers in recognition of states, just as in other areas of international decision-making. Though the Americans sought acknowledgment by all sovereign countries, including such small polities as Ragusa (Dubrovnik) or Tuscany, they concentrated their efforts on the great powers. These powers carried most weight in international society and smaller states tended to follow their initiative and example. Their role became even more evident just before and at the Congress of Vienna. There is little evidence beyond the lone case of the Dutch Republic that liberal sympathies played a role in the recognition of the United States. Rather, the American leaders were successful in channelling the anti-British resentment of France and, more generally, playing the game of European and large consistent with Martens' view, the French court did not accept it had a duty to recognize the United States. 46 balance-of-power politics for their own purposes. There can be little doubt that French recognition and the ensuing military, commercial and financial relations with the United States, as well as de facto alliances with Spain and the Dutch Republic, contributed mightily to the successful establishment of the United States as an empirical state. It was to be a supreme irony of history that in the attempt to help consolidate US independence, the French ancien regime sowed the seeds of its own destruction. But while Louis XVI might have been executed in January 1793 as an implacable feudal reactionary, nothing changes the fact that he was in effect a founding father of the first state created explicitly on the basis of the consent of the governed. The French Revolution and the Congress of Vienna From the current perspective or the standpoint of the last ninety years the founding of the United States may appear as an absolutely critical event in international relations, but it was not perceived as such by the governments of the late 1770s and early 1780s. Even when there was awareness that the US constitutional system was grounded in different principles than those dominating in Europe and that this may carry an external revolutionary potential, the new state was not seen as having the ability to achieve great power standing and to influence events far beyond North America. Modern international society had never before 1776 consisted exclusively of hereditary monarchies. Even if it had been uniformly European and Christian, it contained a certain diversity of constitutional arrangements. Hereditary monarchies had lived side by side with several republics (the Dutch Republic, Genoa, Venice, Ragusa, Switzerland), elective monarchies (Poland, the Holy Roman Empire) and ecclesiastical principalities.56 As long as the differences among members remained relatively limited, there had been willingness to accommodate them. In contrast, the French revolution and its post-1792 period in which France found itself in war with virtually all Europe was understood as a mortal threat to the order based predominantly on rule of legitimate royal houses and during its Napoleonic phase even to the system of sovereign states as 5 6 See, for example, Saint-Pierre's proposed list of nineteen major and several smaller states that were to constitute the federation of peace in 'Abstract and Judgment of Saint-Pierre's Project for Perpetual Peace', in Hoffmann and Fidler, Rousseau on International Relations, p. 72. 47 such. By passing the Declaration of Man and of the Citizen the revolutionaries upset the traditional notions of legitimate statehood on the continent.57 Beginning in 1792, they would not only propagate the ideas of popular sovereignty within France but also seek to export them abroad. France's expansion disrupted the territorial integrity of many existing states and dramatically changed the map of Europe. With Napoleon's defeat no new entity created under France's auspices was allowed to survive and the status quo ante bellum was essentially restored. Self-determination first came up as an international issue in 1790-91 when the French troops occupied Avignon and Comtat Venaissin, two jurisdictions of the States of the Holy See. French revolutionaries went further than the leaders of the American war of independence as they formally renounced conquest in a National Assembly decree.58 When a delegation of representatives from these territories demanded annexation to France, the National Assembly refused and demanded a plebiscite in which people would have a choice of either joining France or remaining a part of the Holy See. The vote appeared to be relatively free, the majority of people and communes voted in favour of merger with France, and the assembly then incorporated both territories.59 This episode was not an instance of creating new state, but it is important for this discussion as it was the first case ever in which people were directly consulted on the question: in which country do you wish to live? Still, for all its innovative and revolutionary qualities this free exercise was not repeated elsewhere in the period between 1791 and 1815. Indeed, France's activities abroad gradually appeared too much as an old-fashioned territorial expansionism. Its revolutionary government annexed one territory after another - Savoy, Nice, Monaco, the Austrian Netherlands 5 7 In its Art. 3 "the representatives of the French people, organized as a National Assembly" proclaimed that "the source of all sovereignty resides essentially in the nation; no group, no individual may exercise authority not emanating expressly therefrom." See Declaration of the Rights of Man and Citizen, August 27, 1789, John Hall Stewart (ed.), A Documentary Survey of the French Revolution (New York: The Macmillan Company, 1951), p. 114. 5 8 This decree of May 22, 1790 was then integrated into Title VI of the 1791 constitution, which says that "the French nation renounces the undertaking of any war with a view of making conquests, and it will never use force against liberty of any people." See The Constitution of 1791, September 3, 1791, Hall, A Documentary Survey of the French Revolution, pp. 230-265. 5 9 Jean Laponce, 'National Self-Determination and Referendums: The Case for Territorial Revisionism', Nationalism and Ethnic Politics, 7 (2001), pp. 38-39. 48 (Belgium), Rhineland, the Bishopric of Basle - without first soliciting the wishes of their populations.60 Their former sovereigns would then be forced to recognize these annexations in bilateral treaties. Foreign policy of the French revolution exhibited two contradictory currents. On the one hand, it espoused the principle of self-determination, which demanded that a people choose its own government. The National Assembly repudiated intervention into the affairs of other countries as well as wars of conquest. These policies would have, by themselves, had minimal impact on international society, as they did not concern, indeed discouraged, unwarranted interference abroad. However, on the other hand, there were voices among the French revolutionaries arguing that as the principle of self-determination is not valid just for their country but for the entire world, France has an obligation, even mission, to support peoples who want to get rid of despotic monarchies. They were to become free by way of French intervention and assistance. The measures of the French authorities were to protect the peoples in question and were to be only temporary - until such time as they gave themselves a constitution based on the general will and were able to govern themselves in freedom. Once the revolution had radicalized with the abolition of monarchy in 1792, the second current took over French foreign relations.61 France conferred on itself the right to decide how, when 6 0 In the case of Belgium, for example, the key concern seemed to be that its independence could be harmful to France. While it was proper that Belgium should have liberty, its sovereignty might have worked to Britain's advantage, so Belgium's "freedom" was to take the shape of union with France. See David Armstrong, Revolution and World Order: The Revolutionary State in International Society (Oxford: Clarendon Press, 1993), pp. 286-287; Belgium was probably the first case of manipulated referendum on the status of a territory and showed the potential for various abuses of this procedure. General Dumoriez, the officer in charge of the French forces later confessed that "the plebiscite in Belgium was nothing other than a bitter comedy. Suppression and looting succeeded the conquest and a strong countermovement against France broke out at the end of 1792. Thirty commissioners, dispatched from Paris, were charged with ensuring that the people voted for integration with the French Republic. The voting usually took place in churches, which were surrounded by soldiers." See Wilhelm G. Grewe, The Epochs of International Law, trans, and revised by Michael Byers (Berlin: Walter de Gruyter, 2000), p. 421 (n. 20). 6 1 In November 1792, the National Assembly adopted a solemn resolution promising protection and fraternity to all peoples rising up for the sake of freedom and ordered the generals of the republic to support these peoples and defend all citizens who were persecuted because of their desire from freedom. See Grewe, The Epochs of International Law, p. 419; This disposition is in marked contrast to the views of American independence leaders 49 and by what means would other peoples become free - under which leaders, under what constitution and in what jurisdiction.62 This policy culminated during the reign of Napoleon Bonaparte who went so far as to put at the helm of foreign states members of his own family. France changed the constitutions of several countries, in a number of cases repeatedly, and it also helped create or created a number of brand new entities. The defeated countries whose territories had been carved up or those powers that, for whatever reason, had to cease their struggle against Napoleon were often forced to recognize these entities as a condition of peace in a series of bilateral treaties.63 Napoleon's domination of Europe introduced a new phenomenon of satellite or puppet states: entities whose empirical founding as well as external legitimacy depend solely on a single power's prior use of interstate force. If the new polities managed to survive during Napoleon's reign - some of them were annexed by France and some eliminated in the course of victories by the anti-French coalition - they were not allowed to outlive Napoleon's demise in 1814. Nearly all states with sovereign status in 1792 were reinstated. Paradoxically, Napoleon was defeated and the old regimes restored partly on the strength of popular resistance to France in Spain, Italy, Germany and the Low Countries. The theoretically implausible notion of national self-determination in a French empire proved to be a practical oxymoron as well: while many absolute monarchs were deeply unpopular and their removal elicited in a number of places initial exhilaration for France, rule of Napoleon and his dynasty over continental Europe became eventually detested nearly everywhere. who, while firmly believing that the consent of the governed is a universal principle, never indicated that the US has a duty to assist other peoples who may in the future struggle for the same conviction. 6 2 In December 1792, a decree of the National Assembly instructed the generals of the republic to declare the old constitutions and laws null and void in any territory they may occupy, proclaim the principle of sovereignty of the people, and call the citizens together for the purpose of establishing a liberal authority. See Ibid. 6 3 For example, Austria was forced to recognize the Cisalpine Republic in Art. 8 of the Treaty of Campo Formio (1797) and the Helvetic and Batavian Republics in Art. 18 of the Treaty of Pressburg (1805). Britain signed the Treaty of Amiens (1802) not only with France, but also the Batavian Republic, thus conveying the latter's recognition. Russia and Prussia concluded separate Treaties of Tilsit (1807) with France. Each acknowledged the Duchy of Warsaw (Russia, Art. 5; Prussia, Art. 15) and the Confederation of Rhine (Russia, Art. 15, Prussia, Art. 4). See Fred Israel (ed.), Major Peace Treaties of Modern History, 1648-1967, Vol. 1 (New York: Chelsea House Publishers, 1967), pp. 436-477. 50 Table 1: Satellite States of Revolutionary France, 1792-1814 The Rauracian Republic (1792-1793) The Batavian Republic (1795-1806) The Transpadan Republic (1796-1798) The Lombardian Republic (1797-1798)* The Ligurian Republic (1797-1805) The Anconitan Republic (1797-1798)** The Helvetic Republic (1798-1803) The Lemanic Republic (1798-1803) The Piemontese Republic (1798-1799)*** The Roman Republic (1798-1799) The Cisalpine Republic (1798-1799, 1800-1802) The Parthenopean Republic (January-June 1799) The Kingdom of Ertruria (1800-1808)**** The Republic of Valais (1802-1810) The Kingdom of Italy (1805-1813) The Confederation of the Rhine (1806-1813) The Kingdom of Holland (1806-1810) The Kingdom of Westphalia (1807-1814) The Grand Duchy of Warsaw (1807-1814)***** The Illyrian Republic (1809-1813) * The Lombardian Republic soon changed its name to the Cispadan Republic and in 1798 it united with the Transpadan Republic to form the Cisalpine Republic. The Cisalpine Republic was later renamed the Italian Republic (1802-1805) ** Merged with the Roman Republic *** Later restored and renamed the Subalpine Republic (1800-1802) **** Nominally part of Spain ***** Nominally part of Saxony The post-war settlement was constructed in a series of treaties, first among the countries of the anti-French coalition and then between the coalition and France. Its purpose, stated most succinctly in the Treaty of Reichenbach, the first agreement leading to the creation of the last coalition, was to "re-establish the independence of the states oppressed by France."64 Beyond that, the territorial settlement, according to the later Treaty of Chaumont, was to establish a "just equilibrium of power." That "European system" was to contain: Germany composed of sovereign princes united by a confederative bond, Switzerland in its former limits, Italy divided into independent states with intermediaries between the Austrian possessions in Italy and France, Spain in its former limits and governed by Bourbon Ferdinand VII, and independent Holland under the 6 4 See Art. 1 of the Convention between Great Britain and Prussia, June 14, 1813, Clive Parry (ed.), Consolidated Treaty Series, Vol. 63 (Dobbs Ferry, NY: Oceana Publications, 1969), pp. 273-279. 51 sovereignty of the House of Orange-Nassau, with an increased territory and with the establishment of suitable frontiers.65 That the goal of the anti-Napoleonic coalition was the return to pre-revolutionary Europe is evident from the First Treaty of Paris, a peace agreement signed in May 1814 with the already restored Bourbon government of France.66 Besides publicly repeating stipulations from Chaumont, it returned France, with small modifications, to the borders from the beginning of 1792. France renounced sovereignty over the tiny principality of Monaco, which was restored "on the same footing on which it stood before the 1st of January, 1792." The effects of treaties signed between Napoleon and Austria, Portugal and Prussia, some of which had contained recognition of French satellite states, were annulled in additional articles. Whereas the treaty did not settle all outstanding issues - one of its articles provided for a general congress to be held in Vienna to complete the settlement - its preamble did not leave much doubt about what kind of government the allies preferred. Because it specified that, unlike under the previous regime, France offered "the assurance of security and stability to Europe" under "the paternal government of her kings," one may infer that monarchical rule, at least in major states (and France never ceased to be deemed one of them despite its military defeat), was considered to be a necessary prerequisite for the endurance of the European system of states. The survival was thought to depend, most crucially, on the sanctity of treaties, the respect for independence of other countries, the balance of power and moderation in foreign policy - and the regimes of post-1792 France were seen as undermining all these values. Part of this equation was the great power agreement, if only informal one, to disallow future conquests by individual countries.67 See preamble as well as Art. 1 of Secret Codicil, Treaty of Union, Concert and Subsidy between Austria, Great Britain, Prussia and Russia, March 1, 1814, Ibid., pp. 83-95. 6 6 Definitive Treaty of Peace between Great Britain, Austria, Portugal, Prussia, Russia, Spain, Sweden, and France, May 30, 1814, MET, Vol. 1, pp. 1-28. 6 7 See Matthew M. McMahon, Conquest and Modem International Law: The Legal Limitations on the Acquisition of Territory by Conquest (Washington, D.C.: Catholic University of America Press, 1940), p. 46. 52 The General Act of the Congress of Vienna was to be the most significant and comprehensive document of the post-war settlement.68 The general act made good on what the Treaty of Chaumont had outlined as the objectives before the capitulation of France. Whereas the Holy Roman Empire was not resurrected, a similar German Confederation was created in its place. The major difference between the two entities was that the latter had no constitutional head and instead of hierarchical authority relations, postulated equality of its members. Its object was no more than "the maintenance of the external and internal safety of Germany, and independence and inviolability of the confederated states." All pretensions from the pre-revolutionary period that the Dutch state was a republic in more than just the name were cast aside when the House of Orange-Nassau was endorsed as the hereditary ruler of the kingdom of the Netherlands. A protocol of the allied countries then in June 1814 specified that Holland should be united with Belgium (prior to 1792 a province of Austria). According to its first article "the Union was decided by virtue of the political principles adopted by [the allied powers] for the establishment of a state of equilibrium in Europe; they put those principles into execution by virtue of their right of conquest of Belgium."69 In Italy, the Congress of Vienna reinstated the kings of the Kingdoms of the Two Sicilies and Sardinia,70 the grand duke of Tuscany and the dukes of Modena, Parma, Placentia and Guastalla, and Lucca - all rulers of states that, in empirical terms, had at least temporarily disappeared from the Italian peninsula during the Napoleonic expansion. However, not all states that had existed before 1792 reappeared in 1815. The territories of the republics of Venice, Ragusa and Genoa were incorporated into Austria and Sardinia. Most conspicuously, the Congress of Vienna confirmed the partition of the elective monarchy of Poland among Austria, Russia and Prussia that had in 1795 extinguished Polish sovereignty. Genoa and 6 8 Its annexes contain seventeen other bilateral and multilateral agreements completed during the congress negotiations from September 1814 to June 1815. See General Treaty between Great Britain, Austria, France, Portugal, Prussia, Russia, Spain and Sweden, June 9, 1815, MET, Vol. 1, pp. 208-277. 6 9 Protocol of Conference between Great Britain, Austria, Russia, and Prussia, June 14, 1814, MET, Vol. 1, pp. 40-41. 7 0 Treaty between Austria, Great Britain, Russia, Prussia, France and Sardinia, May 20, 1815, Ibid., pp. 155-169. This treaty was attached as Annex 13 to the general act. 53 Poland were also the most controversial cases because of the strength of popular resistance to the loss of their sovereign status and because the British argued for their restoration along with the rest of the conquered states (the Republic of Genoa actually reconstituted itself in 1814 after liberation by the Royal Navy).71 These decisions were justified, just as the enlargement of what used to be the Dutch Republic, by reference to the principle of balance of power. The stipulations that the king of Sardinia "shall receive an increase of territory from the State of Genoa" as well as Austrian territorial enlargements in northern Italy are included among provisions of the secret attachment to the First Treaty of Paris outlining "a system of real and permanent balance of power in Europe" that were to be "derived" at the congress in Vienna.72 But, as prevalent as dynastic legitimacy and balance-of-power thinking were in Vienna, the congress could not completely disregard the new ideas of popular sovereignty. The French Revolutionary Wars made the European leaders aware of it far more than the war of American independence and in some cases continental monarchs themselves had to appeal to it when mobilizing the resistance against Napoleon. In the Constitutional Charter promulgated after Napoleon's abdication, Louis XVHJ. declared that "although all authority in France resides in the person of the king," changes to the traditional notions would have to be made "in light of ever-increasing effects of enlightenment...during the past half century." He admitted that "the wish of our subjects for a constitutional charter was the expression of a real need" and professed that the most durable constitution is where "the wisdom of the king freely coincides with the wish of the people."73 In fact, 7 1 The British delegation argued for the restoration of Poland and Genoa, but, being alone in this effort, it did not succeed during the conference bargaining. This failure elicited strong rebukes in the House of Commons. See, for example, Extracts from a Speech of Sir James Mackintosh on the Transfer of Genoa, April 27, 1815, Charles K. Webster (ed.), British Diplomacy 1813-1815: Select Documents dealing with the Reconstruction of Europe (London: G. Bell and Sons, 1921), pp. 404-409. 7 2 Similarly, the treaty between Russia and Austria dealing with Polish affairs declared in its preamble that Poland should be divided based on "the principles of a just balance of power." See Treaty between Prussia and Russia relating to Poland, May 3, 1815, MET, Vol. 1, pp. 105-119. 7 3 Constitutional Charter, June 4, 1814, http://www.napoleonseries.org/reference/political/legislation/charter.cfm. 54 the entire document resembles more the 1791 constitution, adopted during the early moderate phase of the French revolution, than the political organization of the kingdom prior to 1789.74 That this kind of thinking was present just before and at the Congress of Vienna is evident, again, most prominently in the Polish case. In the above-mentioned Prussian-Russian treaty, for example, the reference to the balance-of-power was accompanied by the insistence that "the national spirit...has been taken into consideration" in the Polish settlement. The preamble of the complementary Austro-Russian treaty stated that the parties are "desirous of coming to an amicable understanding upon the measures most proper to adopt for consolidating the welfare of the Polish people."75 The general act, then, resolved that "the Poles, who are respective subjects of Russia, Austria and Prussia, shall obtain a representation and national institutions, regulated according to the degree of political consideration, that each of the governments to which they belong shall judge expedient and proper to grant them." Russia, which got the largest part of the former country, created a separate Polish jurisdiction, the Kingdom of Poland. The kingdom was to enjoy "a distinct administration" and have, among others, a Pole in the office of the royal governor and a distinct Polish army. These provisions fell woefully short of Polish aspirations to independence, but seen from the perspective of history of international legitimacy, they did signal a novel development. However weak and insufficient they may appear, the references to 'national spirit' or 'national institutions' and the intimation that political arrangements should serve 'the welfare of a people' - and not just dynastic interests - represent probably the first formal acknowledgment of the new idea in a multilateral forum. However small a step, the Polish provisions reveal that legitimate statehood at the Congress of Vienna was not entirely about royal hereditary property, even if it was mostly about that. 7 4 The founding treaty of the Quadruple Alliance, concluded shortly after the Congress of Vienna, acknowledged the Constitutional Charter. Its preamble explicitly noted that "the repose of Europe is essentially interwoven with the confirmation of the order of things founded on the maintenance of the royal authority and the Constitutional Charter" in France, thus modifying the statement made in the preamble of the First Treaty of Paris. See Treaty of Alliance and Friendship between Great Britain, Austria, Prussia and Russia, November 20, 1815, MET, Vol. l,p. 372. 7 5 Treaty between Austria and Russia relative to Poland, May 3, 1815, Ibid., pp. 94-104. 55 Elements of the new idea are apparent in other components of the Vienna settlement as well. The preamble of the agreement confirming Swiss independence proclaimed that the powers "obtained every information relative to the interests of the different cantons" and took "into consideration the claims submitted to them by the Helvetic legation." Included in this was also the Bishopric of Basle, a former ecclesiastical principality and then, from 1792 to 1793, an 'independent' Rauracian Republic, which was attached to canton Bern. The declaration guaranteed the bishopric's inhabitants "without any distinction of religion.. .the same political and civil rights which are enjoyed, or may be enjoyed" by the population of the rest of the canton, including "being equally competent to become candidates for the places of representatives, and for all other appointments." The French annexation of the bishopric and surrounding areas did away with feudalism, but the agreement maintained that "the feudal rights and tithes cannot be re-established."76 As for the ecclesiastical states of Avignon and Comtat Venaissin, both of which voted in the 1791 referendum to unite with France, the First Treaty of Paris expressly affirmed them to be parts of France. This occurred despite strong protests from the Holy See and even though the congress restored to it other territories lost to the French empire or its satellite states. Avignon and Comtat Venaissin continued to be part of France even after signing of the Second Treaty of Paris, which, following the unsuccessful attempt by Napoleon to lead France once again, returned France to the borders of 1790. Conclus ion As the formation of the United States and the proceedings of the Congress of Vienna reveal, there was a general consensus that new states could be formed only with the free consent of their legitimate 'parent' sovereign, regardless of how a new state might actually justify its establishment internally. Where this free consent was not given, as was judged in regards to the political communities created under the aegis of French expansion, their claims to existence were rebuffed. International legitimacy in the pre-1815 period clearly centred around the notion of state rights in customary international law, which, given that most states were hereditary monarchies, was taken to imply dynastic rights. The 7 6 Declaration of the Eight Powers on the Affairs of the Helvetic Confederacy, March 20, 1815, Ibid., pp. 64-69. 56 insistence on these rights despite changes in empirical statehood (i.e. appearance and disappearance of empirical states) shows that the ability to take effective control of a territory by force could not by itself establish legitimate titles. As for the new idea, the French Revolutionary Wars showed it could be just as easily abused by power politics as the principles of the eighteenth-century international society. The balance-of-power principle had been defended as a guarantee of independence of 'historic' states, yet at the Congress of Vienna it was used to justify cases, even if only very few, of state elimination. Similarly, the idea of national self-determination was used to justify the exact opposite of its original purpose. Its claim was that a people have the moral right to decide their political destiny, yet the radical revolutionaries and then Napoleon used it to defend the creation of satellite states and, more broadly, an imperial-like policy of unrestrained interference into the affairs of others. 57 C H A P T E R 2: R E C O G N I T I O N O F N E W S T A T E S I N L A T I N A M E R I C A The influence of 1789 and its aftermath on post-1815 Europe was rather incremental. The one region where the ideas and events emanating from France had brought nearly instant changes to the existing distribution of sovereignty - and this, because of its relatively minor role in international relations subsequently in the nineteenth century, has not been widely appreciated among students of world politics - was Central and South America.1 Between 1810 and 1830 this vast area witnessed the birth of twelve new countries.2 In contrast to most states restored in 1815, none was an absolute kingdom, yet they all eventually gained foreign recognition. With the sole exception of monarchy in Brazil they were all defined constitutionally as democratic republics; still, by the mid-1830s all the obstacles blocking their formal cooptation into international society had been cleared. In terms of qualitative change of membership of the society of states, the New World triumphed where twenty-five years of the French revolutionary period in the Old World fell short. Dynastic legitimacy did not get its first sustained blow in Europe but in Latin America. The purpose of this chapter is to chart and disentangle this development. How could Latin Americans achieve acknowledgment so soon after the restorative Congress of Vienna? The answer lies in the decisive repudiation by two powers, Britain and the United States, of the post-Vienna conception of dynastic legitimacy. That conception not only defined state rights as rights held outward against other states with rights held inward against state subjects, as was the case prior to 1789; it also propounded active interventionism to guard the monarchies' dynastic and territorial integrity against internal upheaval. In the wake of the French Revolutionary Wars, external stability was seen as hinging on the nature of internal rule: domestic revolution in one country today was thought to open doors for international conflict tomorrow. In contrast, Britain and the United States argued that state rights can be held exclusively in relation to other states and that coercive, non-1 One recent exception is Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, revised ed. (London: Verso, 1991), ch. 4. 2 They were, in alphabetical order: Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Guatemala, Mexico, Paraguay, Peru, Uruguay and Venezuela. 58 neutral intervention into matters essentially within a state's domestic jurisdiction was inadmissible. They linked this view of foreign relations to the liberal representative character of their respective domestic political systems. Despite their rivalry, the two countries shared the belief that representative government at home implied respect for the choice of government made abroad. The British and American response to the Latin American struggles for independence was a reflection of this basic approach to international relations. The two powers rejected the amorphous category of 'revolutionary usurpation' that confounded the distinction between international and civil conflict. There was an elementary difference between Napoleon, who directed force against other states, and Latin American insurgencies, which concerned the relations between the ruler and the ruled. The latter, as internal conflicts, called for neutrality of third parties and the British and American governments remained neutral despite formidable domestic sympathies for, and in the US case even pressures to take active side of, the rebels. Spain and Portugal were deemed to have a right to demand respect for the sovereignty and territorial integrity of their overseas possessions. But that right - and the corresponding British and American duty to uphold it - was not absolute. It could not but cease with the actual loss by Spain and Portugal of their possessions and the parallel emergence of new polities. Their settled existence was taken as conclusive evidence of the will of their respective peoples to constitute them. As such, it was the source of entitlement to admission to international society. The rise of new de facto entities also had an all-important practical dimension: somebody had to be held responsible for performance of international legal duties towards third parties that had prior relations with Spanish and Portuguese America. But the need for such accountability did not resolve who should be accountable: in the absence of some notion who is the rightful authority there was no a priori reason why the Americans and British should prefer the infant de facto states over reinstatement of Spanish and Portuguese rule by third party force. The policy of de facto recognition thus could not emerge without a non-interventionist conception of international society among major powers. Holy Alliance interventions to recover Iberian rule could have done away with independence of at least a few new entities, and both Britain 59 and the United States worked to forestall the rumoured Russian and French expeditions on behalf of the Spanish king. If tolerated, forcible takeover of one new entity by another would have had identical effect. Deprecating intrastate conquest no less than foreign intervention, the British and American policymakers endorsed the application of the principle uti possidetis juris, which was designed to shield from external force the sovereignty and territorial integrity of all entities that had attained de facto independence. In the international realm, the original interdict of Roman property law uti possidetis, ita possidetis -or 'as you possess, so you may possess' - was to prescribe that unless nascent states agreed otherwise, they inherited borders they had previously had as non-sovereign jurisdictions. Though it was initially applied only to interstate relations within Latin America, the rule has had, as Chapters 5 and 6 will show, a prominent place in the recognition of new states in the last fifty years, undergoing a thorough makeover in the process. In Latin America of the 1820s and 1830s uti possidetis juris functioned as an auxiliary to the de facto principle; since the mid-1950s it has served to keep this principle at bay. Initial Responses to Spanish American Revolutions The origins of Latin American movements for independence can be traced back to the events taking place in the Iberian peninsula between 1808 and 1810. Spain's military defeat by Napoleon, the forced abdication of the king, and the ensuing installation of Napoleon's brother Joseph Bonaparte as the king in Madrid in 1808 threw open the question of Spanish America's political loyalty. In Spain itself, or, to be more precise, in the part that Napoleon failed to conquer, a government with liberal majority but loyal to king Ferdinand VII, called junta central, was established in Seville. Its main objective was to fight the Bonapartist invasion and transform the country into a constitutional monarchy. Spain's American territories accepted it as the legitimate Spanish government, but when the junta central collapsed in 1810 following Napoleon's further advances and Ferdinand's internment in France, they refused to do the same for its replacement, the regency centred in Cadiz. Believing that Spain was about to pass under complete foreign domination, and replicating the pattern from Spain following the deposition of its king, the liberal-dominated groups in Hispanic 60 America founded their own provisional juntas. These acts were not tantamount to assertions of independence from the crown; on the contrary, the juntas were proclaimed in Ferdinand's name. Their formation was justified by a tenet in Spanish medieval law, according to which in the absence of the monarch, government reverted directly to the people.3 However, because the provisional governments repudiated the existing overseas authorities composed of peninsular officials as illegitimate, they invited conflict over who was the rightful government of the crown in the American territories. Most of Spanish America became, as a result, embroiled in civil war. The liberal character of the regency was soon to appeal to some factions - loyalists from Spanish American provinces would send their delegates to the recently assembled Cortes (parliament) - but it never managed to command widespread allegiance outside the metropole. The nature of the dispute changed fundamentally with the Bourbon restoration in 1814. Besides returning to absolute government - by rescinding the constitution, dissolving the Cortes, reinstating the Inquisition and the feudal tribute - Ferdinand reacted harshly against juntas for defying Iberian authorities. The counter-reaction of Spanish American territories culminated in a series of proclamations of independence from the mother country.4 The liberal and democratic character of Spanish American independence documents as well as the first constitutions is readily apparent. Indeed, it is striking just how much they mirrored, both in substance and structure, French and American revolutionary texts. Venezuela's proclamation of independence, made under "the authority held from the virtuous inhabitants of Venezuela," in several passages appears to have been directly inspired by the founding document of the United States.5 The 3 See, for example, Act of the Supreme Junta of New Granada, Relative to the Relations between the Provinces and the Kingdom of Spain, July 26, 1810, British and Foreign State Papers [henceforth BFSP], Vol. 1, Part 2 (London: H.M. Stationery Office, 1841), pp. 1237-1242. 4 The only country in which the local junta did so before Ferdinand's return to the throne was Venezuela. 5 See Declaration of Independence of the Confederated Provinces of Venezuela, July 5, 1811, BFSP, Vol. 1, Part 2, pp. 1108-1113; The Venezuelan parliament preceded the passage this document by the Declaration of Rights, which bears extraordinary resemblance to the Declaration of the Man and the Citizen, including the latter's Rousseaunian references to the general will. See Declaration of Rights, July 1, 1811, Ibid., pp. 1104-1108; It also should be mentioned that beginning with Venezuela, Latin Americans shared the view of the US Declaration of Independence that "decent respect for the opinions of mankind require them to declare the cause which impelled them to the separation." The lengthy justification of Venezuela's choice of independence, 61 Declaration of Independence of the United Provinces of the Rio de la Plata was anchored in "the unanimous will of the people", Peru's in "the general will", and Guatemala's in "the general wish of the people of Guatemala." Chile's proclamation stated that the citizens had in "the first act of a free people" irrevocably consented to Chile being "a free, independent and sovereign state." The deputies of Bolivia's parliament heralded independence "in the name and absolute authority of their worthy electors."6 On the whole, the outside world did not at first react to the hostilities in the New World with much concern. The wars did not make it, for example, on the diplomatic agenda in Vienna. The disquiet grew in 1817-1818, after the Spanish side had begun to incur major losses by having been either territorially marginalized or completely uprooted from several of its possessions. Some powers, notably the United States and Britain, were compelled to formulate a response because they were being approached by agents of the newly-proclaimed states asking for recognition and because their existing trade with Central and South America was continually menaced and frequently disrupted by fighting. It is then that we can detect the earliest signs of a major controversy that pitted these two countries against the continental members of the Quintuple Alliance.7 The first formal British position on the conflict was formulated in 1812 when Foreign Secretary Castlereagh offered his services as mediator.8 Castlereagh's proposal professed both a "desire to see the whole of the Spanish monarchy united in common obedience to their lawful containing exhaustive accounts of Spanish oppression, was given in Manifesto of the General Congress making known the reasons which influenced the Nation in declaring its Absolute Independence of Spain, and of every other Foreign Power, July 30, 1811, Ibid., pp. 1113-1136. 6 In addition, the famous sentence in Art. 3 of the 1789 Declaration of the Rights of Man and the Citizen -"sovereignty resides essentially in the nation" - can be found, either verbatim or slightly altered, in the early constitutional documents of Venezuela, the United Provinces of the Rio de la Plata, Chile, Colombia, Peru, Mexico, Bolivia and Uruguay. References to "the rights of the man and the citizen" were inserted into the constitutions of Guatemala and the Dominican Republic. All of these constitutions then entrenched popular representation as one of the main principles of their government. See BFSP, Vols. 6 (1816-1819), 8 (1820-1821), 9 (1821-1822), 10 (1822-1823), 11 (1823-1824), 13 (1825-1826) and 14 (1826-1827). 7 The Quadruple Alliance of 1815 became quintuple by admission of France at the Congress of Aix-la-Chapelle in 1818. 8 Viscount Castlereagh to Sir Henry Wellesley, April 1, 1812 and Instructions to the Commissioners of Mediation to Spanish America, April 2, 1812, Charles K. Webster (ed.), Britain and the Independence of Latin America, Vol. 2 (London: Oxford University Press, 1938), pp. 309-316 and 317-321. 62 sovereign" and an opinion that Spain's trans-Atlantic provinces "will no longer submit to be treated as mere colonies." The suggested remedy for the "impatience and hatred of the colonial system" was to lift Spanish America from its subordinate position in the empire to "an equal share in the national representation." Britain refused to admit the envoy of the "United Provinces of Venezuela" when he arrived in London to ask for recognition of his country and establish diplomatic relations in 1811. But at the same time Britain made it clear that the future of Spanish America provinces depended on the nature of Spanish rule and its acceptability or non-acceptability to their inhabitants. This will be a permanent theme of British statements on the conflict in the Americas. However, despite the fact that the regency in Cadiz was a liberal government - its constitution adopted in the same year (1812) is in fact considered to be the most progressive document of the entire French revolutionary period - it declined Britain's mediation proposal.9 As it became clear that Spain would not easily recover its overseas control, Britain reiterated its mediation offer in 1817, on roughly the same terms as in 1812. A Foreign Office memorandum circulated to the European powers as well as to Spain claimed that "were Spain now, however late, to change her policy and avowedly to adopt towards her South American subjects a more liberal system of government, a reasonable hope might still be entertained that the Spanish colonies would return to their allegiance."10 The Spanish reaction to the British advice was again negative. Spain's ambassador in London pronounced the "liberal system" in the American dominions to be impossible and illusory. In its place, he pleaded for a joint endeavour to quell the American revolutions. The 9 The regency was not prepared to grant the American territories the right of unfettered trade and argued that no special concessions on civil and political rights were necessary because the Americans could already send their own deputies to the Cortes. Overlooking the fact that the oppressive trade system of colonial monopoly had been one of the main complaints voiced by Spanish America, the regency was distrustful of the British motives for including free trade as a condition of mediation, suspecting that Britain's real motive had been to improve commercial terms for its merchants. See Timothy E. Anna, Spain and the Loss of America (Lincoln, NE: University of Nebraska Press, 1983), p. 110. 1 0 Foreign Office 'Confidential Memorandum', August 20, 1817, Webster, Britain and the Independence of Latin America, Vol. 2, p. 354. 63 alternative to an alliance along the lines of the last coalition against Napoleon was a domino-like collapse of dynasticism: Wherever usurpation sets up her throne, wherever the sacred principle of legitimacy is profaned, it becomes necessary to stifle the evil in its very bud. The interest is general, the cause is common, and the means ought to be uniform, expeditious and decisive... This interest greatly increases by the reflection that America will be metamorphosed...on the theatre of organized subversion, usurpation and domination, and under the auspices of that hateful family, who have carried the destruction of legitimate thrones and of public welfare through all the recesses of Europe. Nothing but a confederacy of the great powers, a sincere and strong manifestation of their intentions and a determination to exert their power, should it become necessary, will put down the empire of the factious, stimulate the loyal and consolidate the political edifice constructed by means of so many sacrifices, and on whose duration depends the happiness of the human race." Not being able to launch conciliation bilaterally, both Britain and Spain were anxious to draw into the discussions other great powers. Spain was soliciting backing particularly from France, the fellow Bourbon kingdom, and Austria and Russia, the two key legitimist powers. It was willing to make concessions, but should the territories have rejected the offer, Spain demanded from its allies guarantees of direct assistance in subduing them. Russia and France began to draft a mediation scheme along these lines, but Britain took strong exception to any proposal involving armed force or economic sanctions by third parties and at the Congress of Aix-la-Chapelle (1818) derailed its adoption.12 The foreign secretary countered the Spanish call for an intervention of the Quintuple Alliance by contending that the Alliance was "not entitled to arbitrate or to judge between His Catholic Majesty and his subjects, and as a consequence, not competent to enforce any such judgment directly or indirectly." Mediation and facilitation were admissible; threats and coercion were not.13 1 1 Duque de San Carlos to Viscount Castlereagh, December 10, 1817, Webster, Britain and the Independence of Latin America, Vol. 2, pp. 360-363; In a remarkable letter several years later Ferdinand VII expressed this idea to Alexander I, the Russian tsar thus: "Until the edifice raised by the revolution is destroyed there is no sovereign secure in his throne, because we will all perish, some earlier, some later." See Ferdinand to Alexander, August 10, 1822, quoted in Anna, Spain and the Loss of America, p. 272. 1 2 See William S. Robertson, France and Latin American Independence (New York: Octagon Books, 1967), pp. 153-4. 1 3 Viscount Castlereagh to Earl Bathurst, November 2, 1818, Webster, Britain and the Independence of Latin America, Vol. 2, p. 64. 64 This stance fitted into a pattern of British opposition to the developing continental doctrine of general interference into the domestic arena of states.14 In a seminal state paper that provided intellectual guidance to successive generations of nineteenth-century British foreign policymakers, Castlereagh contended that the purpose of the anti-Napoleonic alliance was to liberate Europe from French conquests, not to set up "an union for the government of the world, or for the superintendence of the internal affairs of other states."15 He rejected the idea of "an 'Alliance Solidaire' by which each state shall be bound to support...succession, government and possession within all other states from violence and attack"16 on practical, legal and moral grounds, (italics added) The practical objection was the unpredictable consequences of such an extension in permissible use of force on international order. The legal one was that such a "federative system" was never codified by international law, either prior to 1789 or in 1814-1815. States had a right to interfere only where "the internal transactions of another state" seriously endangered their own immediate security or essential interests, but not a license for general and indiscriminate crusading against revolutionary movements everywhere.17 And the moral objection was that force on behalf of vested power might well be force on behalf of abusive power. He concluded that "no country having a representative system of government could act" upon the Holy Alliance doctrine.18 The US Recognition of Spanish American Republics Recognition was first raised not in Europe, but in the United States. There was an obvious prima facie affinity between the United States and Spanish America. The latter was engaged, just as the 1 4 Though it was frequently confused at the time, and still is, the Quadruple Alliance (from 1818 Quintuple Alliance) was not the same thing as the Holy Alliance. Each was founded by a different document. The purpose of the former was to implement and uphold the Vienna settlement. The latter, not signed by Britain, was a vague agreement to support Christian principles in domestic and foreign policy. In the minds of proponents of dynastic legitimacy, the two documents grew inseparable, but Britain consistently opposed this view. Moreover, its leaders argued the settlement was to be upheld only against challenges external to the parties. For the treaty that set up the Quadruple Alliance, see note 73 of the previous chapter and for the treaty that established the Holy Alliance see Treaty between Austria, Prussia and Russia, September 18, 1815, MET, Vol. 1, pp. 317-319. 1 5 State Paper of May 5, 1820, Harold Temperley and Lillian M. Penson (eds.), Foundations of British Foreign Policy: From Pitt (1792) to Salisbury (1902) (New York: Barnes & Noble, 1966), p. 54. 1 6 Memorandum on the Treaties of 1814 and 1815, Aix-la-Chapelle, October 1818, Ibid., p. 46. 1 7 Circular Despatch to British Missions at Foreign Courts, January 19, 1821, MET, Vol. 1, pp. 664-666. 1 8 State Paper of May 5, 1820, Temperley and Penson, Foundations of British Foreign Policy, p. 61. 65 former some forty years previously, in a separatist conflict against its mother country. Moreover, the justification for its struggle was couched in very similar terms. But while the highest levels of the US government were well disposed to, and the American public opinion was decidedly with, Spanish American patriots, there was nothing predestined about how the United States would act. In fact, when the conflict erupted the United States, like Britain, announced its impartial neutrality. Venezuela's emissary to the administration of James Madison in Washington had no more luck with his plea for recognition than his compatriot dispatched to London. Between 1815 and 1818 the government enacted a series of neutrality measures that barred American citizens from enlisting in foreign armies and fighting against a country with which the United States was at peace - an evident step against those who in their zeal for the Spanish American cause would commit non-neutral acts against Spain.19 With the wave of independence proclamations and royalist losses the requests for acknowledgment by the United States began to mount. After having been approached by the envoy of the "United Provinces of the Rio de la Plata" in 1817, President James Monroe asked his Secretary of State John Quincy Adams to clarify the conditions under which US recognition of Spanish America states would be permissible. Adams, who would play a central role in shaping the policy towards Latin America, rejoined: There is a stage in such contests when the parties struggling for independence have, as I conceive, a right to demand its acknowledgment by neutral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when independence is established as a matter of fact so as to leave the chance of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our revolution, and substantially against Holland. If war thus results in point of fact from the measure of recognizing a contested independence, the moral right or wrong of the war depends upon the justice, and sincerity, and prudence with which the recognizing nation took the step. I am satisfied that the cause of the South Americans, so far as it consists in the assertion of independence against Spain, is just. But the William S. Robertson, 'The Recognition of the Hispanic American Nations by the United States', The Hispanic American Historical Review, 1 (1918), pp. 243-244. 66 justice of a cause, however it may enlist individual feelings in its favour, is not sufficient to justify third parties in siding with it. The fact and the right combined can alone authorize a neutral to acknowledge a new and disputed sovereignty. The neutral may, indeed, infer the right from the fact, but not the fact from the right?0 (italics added) With his political views firmly rooted in the ideas of the US Declaration of Independence, Adams operated with the premise that "lawful government was a compact and not a grant." He contrasted the American conception of inalienable right, reflected by the former, with the Holy Alliance conception of inalienable allegiance, which sprang from the latter.21 The understanding of government as a grant considered any rebellion as unlawful by definition; that of government as a compact regarded every people to have a right to overthrow governments violating its inalienable rights, and to replace it with a new compact. Still, acknowledging the right of Spanish Americans to revolt if they deemed Ferdinand VII to have violated their inherent rights did not put an end to the obligations of the United States towards Spain. The law of nations, according to Adams, imposed a duty on third parties to continue to regard Spanish America as rightfully Spanish.22 The duty, however, depended on Spanish America not ceasing being in Spanish hands. The displacement of the mother country by a de facto state extinguished that obligation; it gave rise to a new right. By disclosing habitual obedience of the population to the new authorities - neither its founding nor its continued survival could come to pass in the absence of at least tacit approval by its inhabitants - the de facto state embodied what Jefferson called "the will of the nation substantially declared."23 It was this presumption of popular consent John Quincy Adams to President Monroe, August 24, 1818, Worthington Ford (ed.), Writings of John Quincy Adams, Vol. 6 (New York: The Macmillan Company, 1916), pp. 442-443. 2 1 See John Quincy Adams, Secretary of State, to Richard C. Anderson, appointed United States Minister to Colombia, May 27, 1823, William R. Manning (ed.), Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 1 (New York: Oxford University Press, 1925), p. 198-9. 2 2 Adams later explained this position as follows: "So long as a contest of arms, with a rational or even remote prospect of eventual success, was maintained by Spain, the United States could not recognize the independence of the colonies as existing de facto without trespassing on their duties to Spain by assuming as decided that which was precisely the question of the war." See Ibid., p. 194. 2 3 Jefferson asserted that "it accords with our principles to acknowledge any government to be rightful which is formed by the will of the nation substantially declared" in a letter to the US ambassador in France seeking instructions on how to deal with the government that deposed the monarchy. See Thomas Jefferson to Gouverneur Morris, November 7, 1792, Francis Wharton (ed.), A Digest of the International Law of the United 67 that in the American eyes converted the fact of new states into the right to independence, of which a right to foreign recognition formed an integral part. The Monroe administration delayed the recognition of the Rio de la Plata because though the government in Buenos Aires demanded recognition within the confines of the Vice-Royalty of the Rio de la Plata,24 several of the vice-royalty's former jurisdictions resisted being included into the new state and Buenos Aires did not gain actual possession of them. It had no reason to act otherwise in relation to the other revolted colonies since their situation did not appear settled. The reports of three government missions to South America to ascertain substantive conditions there were inconclusive.25 What became apparent was that victories over royalist troops did not translate into internal political stability.26 Even Buenos Aires, the only territory with no Spanish presence in 1818, experienced a few violent changes of government. The continued neutrality of the United States, however, came under sustained attack in the Congress. The Holy Alliance could not assume neutrality with respect to Spanish America because it favoured the royalist side, and the faction led by Speaker of the House of Representatives Henry Clay rejected the neutral stance because it championed the patriot side. Buoyed by the pro-insurgent public opinion, Clay repeatedly urged the administration to participate actively in achieving Spanish American independence by all means short of direct military action. In his opinion, it was both a moral duty and interest of America to "give additional tone, and hope, and confidence to the friends States, Vol. 1 (Washington, D.C.: Government Printing Office, 1887), p. 521; This is how Grotian thinkers such as Pufendorf and Vattel, as noted in the introduction, thought about rightful authority. According to Julius Goebel, however, there is no evidence that Jefferson drew on them directly. See his The Recognition Policy of the United States (New York: Longmans, Green & Co., 1915), p. 98; It is also important to note that foreign policymakers, whether legitimists or de factoists, did not differentiate between rules guiding recognition of states and recognition of governments. Adams thus only applied to recognition of states the de facto criteria that Jefferson articulated with respect to recognition of governments. 2 4 The Vice-Royalty consisted of what are now Argentina, Paraguay and Uruguay. The Buenos Aires government also laid claim on what is today Bolivia, part of the Vice-Royalty prior to 1810. 2 5 See Arthur P. Whitaker, The United States and the Independence of Latin America, 1800-1830 (Baltimore: The John Hopkins Press, 1941), pp. 248-250. 2 6 See Frederic L. Paxson, The Independence of the South American Republics: A Study in Recognition and Foreign Policy, 2nd ed. (Philadelphia: Ferris & Leach, 1916), p. 136. 68 of liberty throughout the world." The advent of sister republics in the Americas was poised to make the cause of liberty and the position of the United States vis-a-vis the European allies more secure. Adams countered the criticism by contending that belief in the righteousness of a cause of foreign independence did not justify discarding the principle of non-intervention. In his view, these struggles could also disguise less than noble human motives and intervention in them could lead to perilous entanglements abroad and risks to society at home.28 The inalienable rights cited in America's founding document were universal, but their realization in a world of manifold political communities, Adams implied, was particular. Achievement of independence could not but rest on the shoulders of the people who yearned it. President Monroe expressed this point more bluntly: if the revolting territories did not beat Spain on their own accord, they did not deserve to be free.29 By the end of 1821 the Clay-Adams intervention versus neutrality debate was largely overtaken by events. Mexico, Colombia, Chile, Guatemala and Buenos Aires had all but evicted the colonial authorities from their territories and Peru, the last bastion of Spanish power in South America, launched its war of independence.30 As well, the US position became less isolated Toast and Response at Public Dinner, May 19, 1821, James F. Hopkins (ed.), The Papers of Henry Clay, Vol. 3 (Lexington: University of Kentucky Press, 1963), p. 80. 2 8 In a landmark speech, Adams said: "Wherever the standard of freedom and independence has been or shall be unfurled, there will [America's] heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.. .She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colours and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force.... She might become the dictatress of the world. She would be no longer the ruler of her own spirit." (italics in original) See Address of July 4, 1821, Walter LaFeber (ed.), John Quincy Adams and American Continental Empire (Chicago: Quadrangle Books, 1965), p. 45. 2 9 Quoted in Whitaker, The United States and the Independence of Latin America, p. 211; This was hardly an unrepresentative or isolated view. Classical liberals thinkers such Immanuel Kant and John Stuart Mill argued that genuine self-determination could be achieved only by one's arduous efforts. In addition to the already cited passages of Kant in Chapter 1, this is also suggested in Preliminary Article no. 5 of his Perpetual Peace which prohibits, among others, foreign intervention into ongoing separatist conflicts. See Kant, 'Perpetual Peace', p. 96; Mill argued that if a people "have not sufficient love of liberty to be able to wrest it from merely domestic oppressors, the libery which is bestowed on them by other hands than their own will have nothing real, nothing permanent. No people ever was or remained free, but because it was determined to be so..." See his 'A Few Words on Non-Intervention', Gertrude Himmelfarb (ed.), John Stuart Mill: Essays on Politics and Culture (Garden City, NY: Doubleday and Company, 1962), pp. 410-411. 3 0 The Republic of Colombia, formed in 1819, eventually comprised three former parts of Spanish America: the Captaincy-General of Venezuela, the Audiencia of Quito (later Ecuador) and what in 1811 became the United 69 internationally: it became plain that the British policy towards Latin America rested on the same basic foundations. Though the Monroe administration did not synchronize its policy with London - there were soundings from both sides but the mutual mistrust generated by the wars of 1776-83 and 1812-1814 was still palpable - it could not but be comforted by the fact that Britain had parted ways with its continental allies on non-intervention in the New (and Old) World. The chances that recognition would drag the United States into dangerous confrontation with the Holy Alliance hence diminished considerably. In the March 22, 1822 message to the Congress President Monroe proposed recognition of those 'provinces' that manifestly attained empirical independence (Buenos Aires, Chile, Colombia and Mexico). This, he stressed, did not change his country's standing vis-a-vis the belligerents: it would "observe, in all respects, as heretofore, should the war be continued, the most perfect neutrality between them."31 The subsequent protest of the Spanish ambassador in Washington provided an occasion for perhaps the best synopsis of the American views of recognition as well as self-determination. In his reply, Secretary Adams stated: In every question relating to the independence of a nation, two principles are involved; one of right, and the other of fact; the former exclusively depending upon the determination of the nation itself, and the latter resulting from the successful execution of that determination.. .The United States, far from consulting the dictates of a policy questionable in its morality, yielded to an obligation of duty of the highest order by recognizing as independent states nations which, after deliberately asserting their right to that character, have maintained and established it against all the resistance which had been or could be brought to oppose it.. .This recognition...is the mere acknowledgment of existing facts, with the view to the regular establishment, with the nations newly formed, of those relations, political commercial, which Provinces of New Granada (today Colombia and Panama). In 1830, this 'Great Colombia', as it was called, dissolved. The United Provinces of Central America was proclaimed on the territory of the former Captaincy-General of Guatemala in 1821, and was, therefore, habitually referred to as 'Guatemala'. Soon after its establishment it merged with Mexico. In 1823, it cut, without resistance, its constitutional ties to Mexico. In 1824, Chiapas, one of the component jurisdictions of the United Provinces of Central America, voted in a plebiscite to join Mexico. In 1838-1841, the federation broke up into its remaining constituent units: El Salvador, Honduras, Costa Rica, Nicaragua and Guatemala. As with the three successors of Great Colombia, all of them attained mutual and international recognition. The permissibility of recognition of new states created through mutual agreement or at least non-opposition was in principle not disputed. For the adherents of de facto recognition policy, however, this did not do away with the requirement that the new states be empirically established and independent. 3 1 See President James Monroe to the United States House of Representatives, March 8, 1822, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 1, pp. 146-148. 70 it is the moral obligation of civilized and Christian nations to entertain reciprocally with one another.32 (italics original) The British Recognition of Spanish American Republics The European powers reacted to the Spanish collapse overseas and the United States recognition, an act that explicitly trampled on the norms of dynastic legitimacy, with an ever-increasing gulf between the attitudes of Britain and the rest. Though Austrian, Russian and French diplomats were on occasion critical of Spain and even suggested that some concessions vis-a-vis the Americas may be in Spanish self-interest, they nevertheless held that South American recognition could not proceed without prior acknowledgment from Madrid. Upon learning of Monroe's proposal of recognition, Austria's Chancellor Metternich disputed the American assertion that de facto statehood could be assumed to incarnate genuine political will: If the political systems upon which these declarations are founded should be generally approved in Europe, it is evident that henceforth the most illegal and the most audacious enterprises will be judged only by their material success, that any revolt would be sanctioned by the mere fact that the results existed de facto, and finally that there would no longer prevail among men any other right than that of force or any other bonds than those imposed by victorious usurpation of a particular moment - bonds which might be dissolved the following moment. He summarized the Holy Alliance position on recognition as follows: As long as there shall exist a Spanish government under a legitimate sovereign, and as long as that government shall not have legally renounced its authority over its former colonies, the courts of Europe ought to suspend any measure which would consecrate as an integral part of international law what up to the present time has been only the fruit of insurrection and civil war... Whatever may happen, we shall never undertake to deprive the crown of Spain of one of its most precious possessions, nor to sanction by a formal and premature recognition, revolutions to which only a fully demonstrated necessity would some day make us acquiesce....33 For Metternich fact could not invalidate right, even if this was slightly qualified by a vague allusion to a potential necessity of acquiescence. Britain, on the other hand, was gradually moving to a position that had a lot in common with that of the United States. Castlereagh's reply to Spain's John Quincy Adams, Secretary of State, to Joaquin de Andagua, Spanish Minister to the United States, April 6, 1822, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. l,pp. 156-157. 3 3 Metternich to Lebzeltern, June 5, 1822, quoted in William S. Robertson, 'Metternich's Attitude Toward Revolutions in Latin America', The Hispanic American Historical Review, 21 (1941), pp. 540-541. 71 complaint about the American decision was that "His Catholic Majesty must be aware that so large a portion of the world cannot, without fundamentally disturbing the intercourse of civilized society, long continue without some recognized and established relations...The state which can neither by its councils nor by its arms effectually assert its own rights over its dependencies, so as to enforce obedience and thus make itself responsible for maintaining their relations with other powers, must sooner or later be prepared to see those relations establish themselves, from the overruling necessity of the case, under some other form." 3 4 A decisive British move came in November 1822, just before another congress of the five principal powers in Verona. New Foreign Secretary George Canning admitted for the first time, albeit only to his cabinet colleagues, a possibility that Britain would recognize Spanish American states without the mother country's prior consent: "No man will say that there is a reasonable hope of [Spain] recovering [its colonial] jurisdiction. No man will say that under such circumstances our recognition can be indefinitely postponed. The question is, therefore, one entirely of time and degree." Listing several "late colonies" that achieved empirical statehood, just like Monroe did earlier that year, Canning explained the shift by the inability or unwillingness of the Madrid government to prevent and redress the harassment and confiscations of British commercial ships.35 He insisted that "the general proposition of non-interference in the revolutions of independent nations is necessarily limited by the condition that other nations are not to be directly sufferers by their disorganization." Having complained then about the specific harm done by not reining in, or even tacitly countenancing, attacks on British vessels, he asked whether Britain had any other option but to rely on the constitutive effect of recognition: "What recourse do we have but to take away all pretext for the enforcement of these absurd and obsolete pretensions against us, by conferring on the 3 4 The Marquis of Londonderry to Luis de Onis, June 28,1822, Webster, Britain and the Independence of Latin America, Vol. 2, p. 388. 3 5 The British trade with the colonies had been regulated by a bilateral treaty with Spain from 1810. It suffered at the hands of pirates and various Spanish naval units trying to disrupt the commerce of the insurgent territories. 72 colonies, so far as our recognition can do it, an independent, instead of a colonial character, thus cutting short all disputes as to Spain's colonial jurisdiction?"36 The stance that sovereignty entails international responsibilities and not just rights was communicated then to the allies at the Congress of Verona. Though some powers of the Holy Alliance, notably France, were inclined to see Britain's wish to bring an end to its maritime woes as valid, all of them objected adamantly to any scenarios entailing recognition without prior Spanish approval as violating international law and legitimacy.37 The Duke of Wellington, the head of the British delegation at the congress and the former commander of his country's Iberian expedition against Napoleon, even reported to his superior that behind the scenes the continental representatives expressed regret that Britain behaved as if it had been "the protector of Jacobins and insurgents in all parts of the world."38 The congress terminated without any agreement. Still, Britain did not forsake the multilateral 'Concert of Europe' approach and opt for a unilateral recognition.39 It continued to search for reconciliation between the mother country and Spanish America. In 1822 Castlereagh began first explorations of conflict resolution on the basis of independence of new states, and Canning continued in that track. Spanish America was to be offered Spain's recognition. The carrot presented to Spain was the potential transformation of the new republics into monarchies headed by princes from the Canning's Memorandum for the Cabinet, November 15, 1822, Webster, Britain and the Independence of Latin America, Vol. 2, pp. 393-398. 3 7 See documents relating to the Congress of Verona - the British memorandum, Austrian, Russian, Prussian and French replies as well as relevant excerpts from the conference minutes - in Webster, Britain and the Independence of Latin America, Vol. 2, pp. 76-83. 3 8 The Duke of Wellington to George Canning, November 26, 1822, Webster, Britain and the Independence of Latin America, Vol. 2, p. 78. 3 9 The period of protracted waiting for the acknowledgment and establishment of diplomatic ties affected negatively not only John Adams, whose frustrations led, as mentioned in Chapter 1, to his nervous breakdown in The Hague, but apparently also to some Latin American envoys. Having been denied the ambassadorial immunity and being forced to fend for themselves as private citizens after the initial funds from their capitals had dried up, several emissaries in London ended up in debtors' prisons. See Jay Kinsbmner, Independence in Spanish America: Civil Wars, Revolutions and Underdevelopment. Rev. ed. (Albuquerque, NM: University of New Mexico Press, 2000), p. 105. 73 Spanish royal family. Like his predecessor, Canning preferred constitutional monarchy of the British kind to republic,41 and wished to see it as an ingredient of the final settlement. But as much as he might have wanted this outcome, he was unreservedly against its imposition by coercive means. The foreign secretary encouraged the continental allies to persuade Spain to negotiate accession of Bourbon princes with the new states, but if he had to decide between independence of de facto republics and an armed campaign to impose monarchy, he chose without hesitation the former. This attitude in fact mirrored that of the Monroe administration: it verbally encouraged republicanism south of its borders, but it was by no means disinclined to recognize monarchies (as it did Mexico, an empire from 1822 to 1823, and Brazil).42 The clearest indication of this disposition was Canning's reaction to widespread reports in the fall of 1823 that France, which intervened on behalf of the Holy Alliance in Spain to restore absolutism earlier that year, was also preparing a naval campaign against Spanish America. In a series of conversations with French ambassador in London Prince de Polignac, the minutes of which were abridged into the so-called Polignac Memorandum, Canning conveyed the opinion that whenever the mother country shall have clearly lost the means of enforcing the submission of the colonies, neither justice, nor humanity nor the interests either of Europe or of America would, in the opinion of His Majesty's government, allow that the struggle... should be taken up afresh by other hands; but would rather prescribe the recognition of such of those states as, after establishing the fact of their independence, shall have formed also governments apparently of sufficient consistency to contract and maintain external political relations." (italics added) The foreign secretary put France and later other allies on notice that Britain could not look with indifference either to transfer of any colonies to any foreign power or at intervention of any power on Some Latin American leaders, Simon Bolivar among them, were open to consider monarchical government in their countries. This stemmed from their dissatisfaction with the internal instability of the new republics and/or admiration for the British model of government. 4 1 Castlereagh never altered his belief that democratic republics born out of revolution were threats to the stable international order. In this he did not differ from the statesmen of the Holy Alliance, of which Britain was not part. In light of the experience of 1792-1815 and in contrast to the diplomacy surrounding US independence, the internal system of government of prospective states was a key issue for the European great powers. 4 2 Goebel, The Recognition Policy of the United States, p. 139. 74 behalf of Spain. A very similar warning - in its fundamentals if not in all of its concerns and scope - was uttered in President Monroe's address to the Congress in December 1823; this more famous statement became known as the Monroe Doctrine.44 Though unconnected,45 both pronouncements were interpreted in South America as an affirmation of a non-interventionist 'American system'.46 Britain made known its choice to recognize new republics in December 1824 by making public its intention to negotiate treaties of commerce and amity with three countries that unquestionably separated themselves from Spain. The measure was decided after the January 1824 offer of British mediation had been rejected by Madrid - Ferdinand was consistently against independence of Spanish America in any form.47 Mexico, Colombia and Buenos Aires were recognized on the grounds that they had attained empirical statehood48 and there was a pressing need George Canning to the Prince de Polignac, September 22, 1823, Webster, Britain and the Independence of Latin America, Vol. 2, pp. 114-115. 4 4 The president's message, inter alia, stated: "With the existing colonies or dependencies of any European power we have not interfered and shall not interfere. But with the governments who have declared their independence and maintained it, and whose independence we have, on great consideration and on just principles, acknowledged, we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their destiny, by any European power in any other light than as the manifestation of an unfriendly disposition toward the United States." See Message of President James Monroe, at the commencement of the first session of the Eighteenth Congress of the United States, communicated to the Senate December 2, 1823, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 1, p. 217. 4 5 Canning offered Adams a joint declaration, but mutual suspicions at the end scuttled the scheme. Yet it is apparent from the exchanges between the two powers that they agreed upon the fundamental features of interstate relations in the Americas. See Dexter Perkins, A History of the Monroe Doctrine (Boston: Little, Brown and Company, 1955), pp. 36-37. 4 6 See William S. Robertson, 'South America and the Monroe Doctrine, 1824-1828', Political Science Quarterly, 30 (1915), pp! 82-105. 4 7 Canning warned its allies in the Polignac Memorandum that the British government had had no desire to act precipitously "so long as there was any reasonable chance of an accommodation with the mother country by which such a recognition might come first from Spain," but it could not wait indefinitely for, or make its own recognition of new states dependent on, this result. See Memorandum of a Conference Between the Prince de Polignac and Mr. Canning, Begun Thursday October 9th and Concluded Sunday, October 12th, 1823, Webster, Britain and the Independence of Latin America, Vol. 2, pp. 115-120. 4 8 Before making its decision, the British government sent commissioners to each party interested in obtaining UK recognition. Their goal was to determine: (1) whether the party renounced irrevocably all political connections with Spain; (2) whether it had the power as well as the will to maintain the independence which it has established; and (3) whether "the frame of its government was such as to afford a reasonable security for the continuance of its internal peace and for the good faith with which it would be enabled to maintain whatever relations it might contract with other powers." See, for instance, George Canning to Woodbine Parish, August 23, 1824, Ibid., Vol. 1, p. 114; Several polities requesting recognition were also asked whether they abolished the slave trade. In contrast to the first three questions, the aim of this query was not to ascertain presence of empirical statehood but rather incorporation of an international standard into the domestic legislation. See, for instance, Queries submitted to the Minister of Foreign Affairs of the State of Chile, May 15, 1824, Ibid., Vol. 1, 75 to have regulated relations with them, so that they could be held them accountable for treatment of British subjects on their land and off their coasts. In a dispatch communicated to the government of Spain as well as to all major European powers, Canning wrote of "the utter hopelessness of the success of any attempt to bring those provinces again under subjection to the mother country." Because Peru still had some royalist resistance and because Britain had no precise information about the situation on the small Chilean archipelago of Chiloe, which had hitherto been under royalist control, their recognition was delayed. Canning insisted that "a much longer continuance of so large a portion of the globe without any recognized political existence or any definite connection with the governments of Europe, whose subjects are in daily intercourse with those countries, must be... greatly injurious to the interests of their subjects, as well as to the general commercial interests of the world." 4 9 The most inflamed reaction to the British announcement was predictably that of Spain. In the sprawling note of protest Foreign Minister Francisco de Zea Bermudez accused Britain of abandoning the moral and legal precept that "rebellion does not constitute a right" and of "disowning the legitimate rights of the King of Spain and the Indies." What wil l become of the society of states, he asked, i f Britain, having engaged in exemplary resistance against Napoleon's usurpations, "now takes up the cause of a handful of rebels?" Zea Bermudez promised that Ferdinand VII would "never abandon the rights of his crown" and "never cease to employ the force of arms against his rebellious subjects, conformable to the principles of the rights of nations, inherent in the existence of all thrones." Yet, in contrast to the British response to France's recognition of the United States in 1778, Zea Bermudez did not dwell purely on the subject of dynastic rights. He also assailed Canning's assertion that the countries Britain wanted to recognize had been empirical states. The minister was p. 354; As Spanish American possessions had not engaged in the slave trade, this did not need to be presented to them, in contrast to Brazil, as a condition of recognition (see below). In their drive to achieve it they nevertheless listed past laws or pledged to pass new laws relinquishing the illegitimate practice. 4 9 George Canning to George Bosanquet, December 21, 1824, Herbert A. Smith (ed.), Great Britain and the Law of Nations, Vol. 1 (London: P.S. King & Son, 1932), p. 150. 76 adamant that the "pretended" states of Mexico, Colombia and Buenos Aires had been in the grip of civil war, anarchy and disorder. "Are these consolidated governments? Are these the governments which present sufficient stability and security to induce Great Britain to treat with them?"50 These comments suggest that the question of fact was not deemed meaningless even by as ultra-legitimist a power as Spain.5 1 Canning began his rebuttal by stating that Spain was in "a denial of the facts" concerning the three countries. Without elaborating further, he concentrated in the remainder of his reply on the issue of right. Having been charged with violating international law, he asked rhetorically: "Has it ever been admitted as an axiom, or ever been observed by any nation or government, as a practical maxim, that no circumstances, and no time should entitle a de facto government to recognition?" He replied in the negative and gave two examples from Spanish history itself - the Dutch Republic and Portugal - the former, ironically, listed in the French response to the British charge of premature recognition of the United States. The mother country recognized their separation decades after the fact, but third parties did not in the meantime wait for "the slow conviction of Spain" and established direct relations with the two de facto states. Then Canning turned to the situation Britain had faced in the western hemisphere. He stressed that "the separation of the Spanish colonies has been neither our work, nor our wish." But it was "the duty of the British government" to tend to "the plain and legitimate interest of the nation whose welfare is committed to its charge" and to remedy adverse repercussions of that separation. And he clinched the discussion of international right with the following point: Francisco de Zea Bermudez to the British Charge d' Affaires at Madrid, January 21, 1825, Smith, Great Britain and the Law of Nations, Vol. 1, pp. 152-160. 5 1 Spain had resorted to the factual arguments also in the protest against President Monroe's announcement of recognition in 1822. The Spanish ambassador in Washington had accused the US of not waiting for the outcome of the purportedly still ongoing contest between the mother country and would-be republics. He had also denied in some detail that the latter had formed de facto states. See Joaquin de Anduaga, Spanish Minister to the United States, to John Quincy Adams, Secretary of State of the United States, March 9, 1822, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 3, p. 2010. 77 All political communities are responsible to other political communities for their conduct: that is, they are bound to perform the ordinary international duties, and to afford redress for any violation of the rights of others by their citizens or subjects. Now, either the mother country must have continued responsible for acts over which it could no longer exercise the shadow of a control, or the inhabitants of those countries, whose independent political existence was, in fact, established, but to whom the acknowledgment of that independence was denied, must have been placed in a situation in which they were either wholly irresponsible for all their actions, or were to be visited, for such of those actions as might furnish ground of complaint to other nations, with the punishment due to pirates and outlaws. If the former of these alternatives, the total irresponsibility of unrecognized states, be too absurd to be maintained, and if the latter, the treatment of their inhabitants as pirates and outlaws, be too monstrous to be applied, for an indefinite length of time, to a large portion of the habitable globe, no other choice remained for Great Britain, or for any country having intercourse with Spanish American provinces, but to recognize in due time their political existence as states, and thus bring them within the pale of those rights and duties, which civilized nations are bound mutually to respect and are entitled reciprocally to claim from each other.52 The response makes it plain that Britain had not regarded the Spanish American insurrections in any way comparable to Napoleon's usurpations. The British lay more emphasis on the international responsibility argument in their defence of recognition of Hispanic America than did the Americans in theirs,53 but that does not mean that they would have disagreed with the American proposition that de facto states deserve recognition since they represent 'the will of the nation substantially declared.' Castlereagh's rejection of the Holy Alliance doctrine of intervention, after all, reflected partly the concern that coercive interference could prop up what the population of the targeted state considered to be abusive power. If one admitted that those living under such George Canning to the Chevalier de Los Rios, March 25, 1825, Smith, Great Britain and the Law of Nations, Vol. l,pp. 162-170. 5 3 That this was also an American concern is obvious not only from the already quoted reply to the Spanish protest against Monroe's message of recognition, but also from the (abortive) American proposal to Britain in 1819 to coordinate their recognition decisions: ".. .these newly formed states should be regularly recognized not only because the right to such recognition cannot with justice be long denied to them, but that they may be held to observe on their part to ordinary rules of the law of nations, in their intercourse with the civilized world. We particularly believe that the only effectual means of repressing the excessive irregularities and piratical depredations of armed vessels under their flags and bearing their commissions, will be to require of them the observance of the principles, sanctioned by the practice of maritime nations. It is not to be expected that they will feel themselves bound by the ordinary duties of sovereign states, while they are denied the enjoyment of all their rights." See John Quincy Adams, Secretary of State, to Richard Rush, United States minister to Britain, January 1, 1819, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 1, p. 87. 78 government could justifiably oust it, then it was only logical for that person to accept the ouster itself. Indeed, it is difficult not to conclude that Canning's international responsibility argument was grounded in, and depended directly on, the primary justice argument. For if the only concern was that there is a government responsible to third parties, then there was no prima facie reason why that government could not be that of Spain, restored by a Franco-Russian military intervention. How did other powers react to the British recognition? The United States was the sole country that endorsed it. Austria, Russia, France and Prussia all protested against it, albeit, it must be added, not with overt hostility. Prussia judged the British decision to be "contrary to the rights of sovereigns and to the principles of legitimacy - principles which had been established as the rule of conduct for the great European alliance."54 Conveying worries about the future of dynastic legitimacy, Austria not only described Britain's announcement as "the final blow to the interests of Spain in the New World," but also expressed apprehension that it "tended to encourage the revolutionary spirit, which it had been so difficult to restrain in Europe."55 Russia echoed Prussia's concern about infringements on "the rights of sovereignty"56 and France reiterated Austria's apprehension about signals sent by " a successful resistance to legitimate authority."57 Although they diverged from Britain on what the facts were or what was their weight in relation to dynastic rights, even the most legitimist regimes now made references to facts. Russia disputed that Mexico had been an empirical state and that royalist troops had been defeated conclusively. Whereas in early 1822 Metternich criticized the resort to factual arguments concerning 5 4 Substance of a Communication from Baron de Maltzahn, Prussian Minister to Great Britain, to George Canning, Secretary of State for Foreign Affairs of Great Britain, March 4, 1825, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 3, p. 1541. 5 5 Sir Henry Wellesley to George Canning, January 17, 1825, Webster, Britain and the Independence of Latin America, Vol. 2, p 35. 5 6 Substance of a Communication from Count Lieven, Russian Minister to Great Britain, to George Canning, Secretary of State for Foreign Affairs of Great Britain, March 2, 1825, Manning, Diplomatic Correspondence of the United States Concerning the Independence of the Latin American Nations, Vol. 3, pp. 1538-1540. 5 7 Viscount Granville to George Canning, February 20, 1825, Webster, Britain and the Independence of Latin America, Vol. 2, p. 167. 79 the actual state of American territories in the Spanish protest against US recognition,58 in late 1823 he conceded that "the re-establishment of the royal authority over those possessions appeared to be almost hopeless" and said to the perhaps baffled British ambassador in Vienna that " i f after all Spain could not be brought to adopt a line of conduct consistent with the situation in which the course of events had placed her with respect to the Spanish colonies, it would remain for each power to take the line which might be most conducive to its own interests."59 The seemingly schizophrenic position of, on the one hand, the fear that "great calamities would be brought upon Europe by the establishment of...vast republics in the New World" and, on the other, the political impossibility to forever disregard de facto independence of the new states when some European countries (not Austria) had prior relations with them, may provide clues as to why the Austrian reaction to the British decision was overall so tepid. At the end, Prussia, France, the Netherlands, Denmark, Portugal and Sweden did not put off recognition of Spanish American republics until Spain did so. In the case of France the change occurred after the July Revolution of 1830. The court of the 'bourgeois king' Louis Philippe quickly formalized ties with most Spanish American republics and was actually the first to have acknowledged Bolivia. 6 0 Spain also began extending recognition after the demise of domestic absolutism. In 1836, three years after the death of Ferdinand VII, the restored Cortes approved unanimously the report of its special committee examining the issue of signing treaties with the new states.61 After a consensus during the chamber debate that these countries had been de facto independent, the report blamed for previous non-recognition the pre-1833 absolutism: Metternich to Vincent, March 6, 1822, quoted from Robertson, 'Metternich's Attitude Toward Revolutions in Latin America', p. 542. 5 9 Sir Henry Wellesley to George Canning, December 20, 1823, Webster, Britain and the Independence of Latin America, Vol. 2, p. 20, See also Robertson, 'Metternich's Attitude Toward Revolutions in Latin America', p. 545. 6 0 Robertson, France and Latin American Independence, p. 553; Legitimist Charles X, however, recognized independence of Haiti, which cast off French rule in 1804, in 1825. 6 1 William S. Robertson, 'The Recognition of the Spanish Colonies by the Motherland', The Hispanic American Historical Review, 1 (1918), pp. 80-81. 80 At various epochs the Cortes has expressed its opinion concerning the necessity and advantage of recognizing the independence of our former contin
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UBC Theses and Dissertations
International society and the establishment of new states : the practice of state recognition in the… Fabry, Mikulas 2005
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