The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER VIII
THE ORIGIN, RECOGNITION, AND CONTINUITY OF STATES

110. The Origin and Existence of the State . -- It is not within the province of the Law of Nations to deal with the causes of the origin or of the existence and growth of States -- a subject which belongs to the province of general political science rather than to that of international jurisprudence. It is impossible to lay down juridical rules which shall determine the legality of the existence of an independent political community. The State is an historical and political fact,1 the creator rather than a creature of law; but it is possible to determine, in a general way, the rules which should govern their recognition by, or admission to, the international community. The most important of these is that they must bear the essential marks or distinguishing characteristics of a State as set forth in a previous chapter.2

The State exists independently of its recognition,3 but some form of recognition is necessary in order to secure its admission into the family of nations. There is, strictly speaking, no right to admission,4 though there are many cases in which recognition cannot long be withheld without danger of serious or embarrassing consequences.

____________________
1
Jellinek, Das Recht des mod. Staates ( 2d ed. 1905), 265 ff. Cf. Die Lebre von den Staatenverbindungen ( 1882). See also 1 Fauchille, No. 195; Liszt, § 7 III; 1 Nys, 70 ff.; 1 Rivier, 55 ff.; and Ullmann, § 29, p. 123.
2
See supra, No. 88.
3
"It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by the treaty of Peace, 1783. It has been viewed only as a recognition of preëxisting rights." . . . Harcourt v. Gaillard ( 1827), 12 Wheat, 523, 527. Cf. McIlvaine v. Coxe's Lessee ( 1808), 4 Cranch, 209, 212.
4
Consequently, there is no legal duty of recognition. This is the opinion of 1 Fauchille, No. 203 f.; Liszt, § 7 IV; 1 F. de Martens, § 64; 1 Oppenheim, § 71; and Le Normand, La reconnaissance internationale ( 2d ed., 1899).

But the contrary view is maintained by equally good authorities. See e.g. Bluntschli, Art. 35; Hall, pp. 20, 103; 1 Piédelièvre, No. 122; Pomeroy, § 215; 1 Rivier, 57; and Ullmann, § 30, p. 125.

The right and duty of recognition seems to be of a moral nature. Several of the authorities (see e.g. 1 P.-Fodéré, No. 144) speak of a theoretical right of recognition which may be ignored in practice.

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