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CONCERNING THE RECOGNITION OF NEW GOVERNMENTS BY THE
Before the beginning of the nineteenth century, Jefferson, as is well known, declared it to be in accord with American principles “to acknowledge any government to be rightful which is formed by the will of the nation, substantially declared." He perceived both the continuity of state life in spite of governmental changes, and also the reasonableness of entering into formal relations with whatever party ultimately gained the ascendency. It was the fact of control rather than any other circumstance which appeared to be regarded by him as the decisive test. He announced that "the will of the nation" was “the only thing essential to be regarded,” whether a “king, convention, assembly, committee, president, or anything else" might be chosen as the organ through which intercourse with foreign nations was to be had.
During the first half of the nineteenth century, and until the Civil War, the theory of Jefferson seems to have been simply applied by the United States. When a monarchical government overthrew a republican, the result was reckoned with without regard to the domestic legitimacy of the transaction, and recognition duly accorded. Irrespective of the nature or method of any change, the United States was not disposed to concern itself with more than the fact that a particular party was in actual control. Secretary Seward in 1861, and likewise his successors for some years following, pursued a different course. They announced in substance that a revolutionary government in a republican state, and defiant of an existing constitution and gaining control by sheer force of arms, ought not to be recognized by the United States until it was assured that the change was adopted by the people rather than imposed upon them against their will. Thus the will of the nation was deemed to be inseparable from or identical with that of the people. This idea found expression in American state papers for several decades, although the forms of utterance lacked uniformity. In the meantime American instructions gradually began to emphasize the significance of another consideration—the ability of any new government with respect to foreign obligations of the state.
In 1899, Secretary Hay evinced a readiness to authorize the recognition of a new government merely when it appeared “to be established in control of the machinery of administration and in a position to fulfill its international obligations.” Under such circumstances recognition was speedily accorded, and without apparent concern as to any other consideration.
In more recent years there has been a return to a position resembling that taken by Secretary Seward and followed by his immediate successors. Without failing to require assurance of the competency of a new government to perform its international obligations, importance has been attached to its respect for constitutional requirements. At the present time the United States is believed to be reluctant to recognize a new government as such, if it has attained the ascendency by force and in defiance of a local constitution declaratory of popular rights, in the absence of convincing proof that the change is supported by the will of the people. Such a view was expressed in connection with the recognition of the government of General Estrada in Nicaragua in 1911, and in the withholding of it from that of General Huerta in Mexico in 1913 and 1914, and later from the Tinoco government in Costa Rica. Doubtless American recognition must be ultimately given where a government, however obnoxious to the people who are compelled to yield obedience, maintains itself indefinitely, and enforces locally complete submission to its will.
The United States now appears to take the stand that normally a government which by force has won apparent control in opposition to the will of the people, and with contempt for their rights assured by a local constitution, is internationally a menace, because its very supremacy sows seeds of discord bound to ripen into a conflict which, however localized, may fairly be deemed hurtful to the maintenance of the general peace. It is doubtless also believed that a government of such a character will lack those moral qualifications which are found to be essential to enable the agencies of a state to perform scrupulously its obligations to the outside world.
The soundness of these principles is now being tested by conditions in Russia where, according to the speech of Mr. Lloyd George in the House of Commons on April 16th last, "the Bolshevist government has committed crimes against the Allied subjects, and has made it impossible to recognize it even as a civilized government.” It is believed to be reasonable for enlightened states to discourage the activities of arbitrary and essentially unpopular aspirants to governmental control when their methods are heedless of the laws of God or man. In such case the according of recognition may be fairly delayed as long as possible, and moral support thus given the opposition. It may be urged that such action constitutes direct interference in the domestic affairs of a foreign state, and may be unjustly applied at the caprice of interested Powers for political ends. It should be observed, however, that there is no legal duty imposed upon a state to accord recognition at any particular time. The right to withhold it indefinitely is not wrongful. The influence exerted upon the outcome of a domestic conflict, through the exercise of the right to postpone recognition of a particular party until it becomes highly inexpedient longer to withhold it, does not resemble in kind those affirmative acts of opposition which are deemed to restrain political independence and to constitute intervention.
If in the interest of the society of nations the members thereof should habitually manifest extreme reluctance in recognizing as a new government one which acquired power in the teeth of popular opposition and by inhuman methods, evidence both of popular support and of abstinence from arbitrary procedure, would be commonly if not invariably offered by a party demanding recognition, as a necessary means of preventing indefinite delay.
CHARLES CHENEY HYDE.
THE NEUTRALITY BOARD
Upon the outbreak of the War of 1914, the United States, which had been pursuing the paths of peace, found itself suddenly brought face to face with the problems which inevitably confront a neutral, and as the distance of the United States from the scene of military operations made it likely that our country would be more affected by the operations of belligerents upon the ocean separating the new from the older world than by military operations upon land, a special board was created within a fortnight of the beginning of the war, known as the Joint State and Navy Neutrality Board, to handle such matters as the Department of State, on its own behalf or on behalf of other departments of the Government, might care to refer to it for examination and report. Because of the nature of the problems, it was decided to restrict the membership of the Board, so that, having the benefit of discussion and different points of view, its membership should not be so large as to prevent the rapid formation of opinion. Therefore, the Board was composed of a representative from the State and of two representatives from the Navy Department. On behalf of the Department of State, Mr. James Brown Scott was appointed, and on behalf of the Navy Department Captain, now Rear-Admiral, Harry S. Knapp, and Captain, now Rear-Admiral, James H. Oliver. There was but one change in the membership of the Board during the two years and a half of its existence, due to the fact that Captain Knapp was appointed to command the Pennsylvania, and Captain William B. Fletcher was, on December 29, 1916, designated by the Navy Department to succeed Captain Knapp.
This is not the place, and the undersigned is not the person, to examine the opinions of the Board or to express an opinion as to their value or lack of value. An enumeration of the more important questions referred to the Board will show the nature and the extent of its labors, and the letter of the Secretary of State dissolving the Board, after the United States had ceased to be neutral, will sufficiently indicate his opinion as to the importance of its services.
Among the subjects referred to and considered by the Board were the following: Supplying of coal to belligerent warships and merchant vessels; use of the Panama Canal by belligerents; entry into and departure from neutral ports of armed merchant vessels and their treatment therein; removal of enemy subjects from American ships; belligerent use of American radio stations; the status of Government owned vessels engaged in commerce; the sale of belligerent ships during war; the status of transports and tank steamers under Government charter; the status of the Declaration of London; unneutral service by American vessels; the purchase of German merchant ships by neutrals; the conversion of merchant vessels into warships; the transit of war materials through neutral territory; the application of the twenty-four-hour rule; Orders in Council relating to blockade and contraband; the internment of belligerent warships; supplies and repairs for belligerent warships; aircraft and the laws of the air; the sale of submarines by neutral citizens to belligerent Governments; war zones; the status of belligerent merchant vessels in neutral ports; the sale of hydro-aëroplanes; the sale of munitions of war; use of neutral flags as a ruse de guerre; retaliatory measures adopted by belligerents; various questions relating to contraband of war; the right of angary; the torpedoing of merchant vessels; the status of the treaty of 1828 between Prussia and the United States; German Prize Court decisions; rights of American claimants before enemy prize courts; sale of motor boats by neutrals to belligerents; enlistments in enemy armies upon American territory; censorship of mails; the right of blockade; censorship of wireless and cable messages; raising of war loans by belligerents in the United States; manufacturing of coins for belligerents; transit of enemy troops through neutral territory; visit and search; hovering of belligerent cruisers near American ports; enemy restrictions on trade; status of commercial belligerent submarines ; visits of belligerent warships to neutral ports; treatment to be accorded submarine war vessels in neutral ports; enemy intrigues in neutral countries; treatment of neutrals in enemy countries; status of vessels chartered, leased or requisitioned by belligerent Governments.
The letter of the Secretary of State, dissolving the Board, to which reference has been made, follows:
In view of the declaration of the existence of war between the United States and the Imperial German Government made by Congress on April 6th last, it appears unnecessary to continue the Joint State and Navy Neutrality Board for the consideration of questions arising out of the European War while the United States was a neutral. I therefore suggest that the Board be disbanded, and that a copy of this letter be sent to each of the members thereof for his information.
Allow me to add that, in my estimation, the work of the Board as an advisory body has been of the highest order, and that, while it has not always been expedient to follow the recommendations of the Board, its well-considered opinions have been of very great assistance to the Department in formulating the policies which it has announced and pursued during the period of American neutrality. I desire, therefore, to express to the Board my deep appreciation of the splendid service rendered and the unstinted time and labor given by each member to his Government during one of the most critical periods of the history of the United States.
The opinions of the Board, in many cases elaborate and in all instances supported by authority, were advisory and, in the nature of things, considered the law rather than questions of policy. They covered a large field and will one day be interesting as showing the questions which the Government considered of more than passing importance in the days of its neutrality.
JAMES BROWN SCOTT.