The Issue of Diplomatic Recognition for the State of Eelam

by Sachi Sri Kantha

Mahinda Rajapakse’s cliches

The text of what President Mahinda Rajapakse said at the recently concluded Non-Aligned Movement summit in Havana [‘Renew commitment to fight terrorism’, as reported by Bandula Jayasekera, in the Colombo Daily News, Sept.17, 2006], was hardly surprising. The Sri Lankan President’s address was packed with nothing but the routine claptrap cliches we have come to expect from the leading top dogs of the island. What can one expect from Sri Lankan politicians who do not read the history of the valiant struggles for liberation, led by guys like Washington, Mao, Begin and Mandela?

As such, President Rajapakse made a fool of himself by reading his speech, probably written by a servile hack, which carried the following howlers: “Terrorism and liberation differ from each other, as much as the sky differs from the earth. Liberation, unlike terrorism, is a creative and a human force. It is a humane vehicle of new visions for the progressive change of power structures on the one side and socio-economic structures on the other. Terrorism, by contrast, is a destructive force – a de-humanizing force – that cannot in any way be justified.”

I’d advise the Sri Lankan President to have a complete set of Encyclopedia Britannica and Encyclopedia Americana each placed on the shelves of his study, so that during his leisure time he can upgrade his knowledge on the national histories of the USA, China, Israel and South Africa. Though history may not be his forte, Mahinda Rajapakse is certainly not a fool. As LTTE leader Pirabhakaran stated last year, Rajapakse is indeed a pragmatic politician. I quote a question from the transcript of the press conference conducted by Robert.O. Blake Jr, the new American ambassador to Sri Lanka, on September 19th in Colombo.

“Question: I’m from the ABC news. There is an interesting observation by Prime Minister Tony Blair when he met President Mahinda Rajapaksa. He observed that the LTTE has been given an equal stakeholder status, whereas in the case of the IRA, and even in the case of the Al Qaeda, they have not been given the stakeholder status. What are your comments on this?”

There is hardly a doubt that the LTTE’s current status in international circles as an equal stakeholder with the Sri Lankan government pricks President Rajapakse like a needle. Thus the delivery of claptrap cliches (i.e. targeting the LTTE without naming them) by him about terrorism in Havana and New York have to be grasped from this angle.

Despite the ad nauseam sermons to the LTTE about the need to' renounce violence,' the international community (even those representing the states which have designated the LTTE a “foreign terrorist organization”) has come to recognize the LTTE’s contribution (1) on behalf of Tamil rights in Sri Lanka, and (2) in making Sri Lanka a failed state. But, being an ardent Aryan Sinhala President, Mr. Rajapakse is in a state of denial. He cannot accept the fact that the LTTE has transformed Sri Lanka into a rump state of what it was in 1983.

While professing peace, Mahinda Rajapakse’s current strategy in international corridors of power is nothing but to aggressive resist the international recognition of a de facto Eelam state, which has already come into existence. However, the abysmal failure of Jayantha Dhanapala, the designated Sri Lankan candidate for the UN Secretary General post, in garnering support for his touted candidacy is also a valid indicator showing how dismal is the current clout of the rump Sri Lankan state (and also the lack of appeal for the cacophonous barking of Sri Lankan top dogs) in international loops of power.

Diplomatic recognition for the de facto Eelam state

This brings me to the question of international recognition for the de facto Eelam state. As an example, let me mention the most famous case of Mao’s post-revolutionary China.

Did the United States diplomatically recognize Mao’s China initially?

Not at all. For nearly 30 years, from 1949 to the end of 1978, American mandarins made fools of themselves by pretending that Taiwan was “China.”

Then, what made United States gulp its ‘democratic Christian pride’ to recognize Communist China? Capitalist reasons of trade and business markets. But note that, American recognition came only after the deaths of Mao Ze Dong, Zhou Enlai and Zhu De in 1976. Mao and Zhu were the military heroes of the Chinese Red Army.

Has China’s political set-up changed to democracy, because of American recognition? No.

Will it change?

Never.

Why?

In the four millenia of its history, democracy as a viable political process has been unknown in China. Was it Deng Xiaoping who quipped that the American ‘democracy’ of 220 years is merely equivalent to one dynasty’s tenure in China’s long history?

Will those who preach ‘democratic ideals’ (the American ambassadors, Aryan Sinhala politicans and also New Delhi mandarins) to the LTTE and Tamils dare to tell the same thing to the Chinese in Beijing?

Never.

For a fitting description of the flip-flop made by the American policy mandarins relating to the diplomatic recognition of China, I quote a passage from a 1980 paper by Ross Terrill on the ‘US-China Relations’;

“At the end of 1978 President Carter did what Truman did not do because of the outbreak of the Korean War, Einsenhower did not do because Dulles did not wish it, Kennedy and Johnson did not do because the Vietnam War and China’s Cultural Revolution distracted them, Nixon began to do but did not finish, Ford did not do because of electoral pressures – accepted that Mao won, and Chiang lost, the Chinese civil war.” [source: Australian Journal of Chinese Affairs, Jan.1980, no.3, pp.99-111]

For Eelam Tamils to comprehend the history and the musical chair game of ‘diplomatic recognition,’ I provide below the complete text of a remarkable paper by Hardy Cross Dillard, entitled ‘The United States and China: The Problem of Recognition,’ which appeared in the Yale Review journal in Dec.1954. Though 52 years have passed, the pivotal issues covered in this paper are of utmost relevance to the de facto Eelam state as well.

In brief, Dillard describes the prevailing pattern of two tests for ‘diplomatic recognition’; (1) objective criteria or test, (2) subjective criteria or test. Leading states choose one or the other of the two options.

Dillard states that Thomas Jefferson (1743-1826), the 3rd President of USA, was the foremost proponent of the objective criteria. The current mandarins of American policy in Washington DC and their ambassador representatives need to be reminded of Jefferson’s words, quoted in the text of this paper.

According to Jefferson, ‘We surely cannot deny to any nation that right whereon our own Government is founded – that every one may govern itself according to whatever form it pleases, and change these forms at its own will; and that it may transact its business with foreign nations through whatever organ it thinks proper, whether king, convention, assembly, committee, president, or anything else it may choose.’

But in the second half of the 19th century, William Seward (1801-1872), the Secretary of State under President Abraham Lincoln, introduced subjective criteria into American diplomacy. This was in consequence to the seriously fought American Civil War (1861-1865). In the case of China, following Mao’s revolution, while Britain choose the objective test, USA adopted the subjective test, which delayed its recognition of the new government. Ultimately, the USA has had to accept the objective criteria.

If, by some quirk, this commentary of mine is brought to the attention of President Rajapakse or any of his speech-writers, I’d suggest they note that this is what Dillard has to say in his final paragraph of his article. “Most of the governments of the world owe their origins to revolutionary violence, and the history of prior revolutions appears to show that ultimately ideal solutions, registering moral values, must make a rough compromise with the realities of power and the facts of life.” Contrary to the currently prevailing views of the American policy mandarins in Washington DC, I’m of the opinion that, as of now, the de facto Eelam state passes the objective criterion of diplomatic recognition proposed by Thomas Jefferson.

As per the transcript of Dillard’s article presented below, for ease of reading, I have merely added subtitles at appropriate locations. Also note that Dillard refers to Taiwan by its then prevailing name, Formosa. Words or phrases in italics, wherever they appear, are in the original.

The United States and China: The Problem of Recognition

By Hardy Cross Dillard

[courtesy: Yale Review, Dec.1954; vol.44, no.2, pp.180-195]

[The American and British dilemma about Communist China]

In the eyes of some twenty-five nations of the world, including in particular the United Kingdom, the revolution which has gripped unhappy China spasmodically and with varying degrees of intensity since 1927 reached its climax in December 1949, with the flight to Formosa of Chiang Kai-shek and the remnants of his government. Accordingly, within two weeks of the flight across the Formosan Straits, Great Britain recognized (January 6, 1950) the ‘new’ government, which had even earlier been recognized by the nine nations comprising the Soviet bloc and by Burma and India. From then the revolution was over. But in the eyes of forty other nations, including not only the United States but Australia and New Zealand, the issue was not so simple. What attitude these governments would have taken in the event Chiang Kai-shek’s Kuomingtang had been completely liquidated remains only a matter of informed conjecture. The significant fact was that this regime had not been liquidated. Recognition therefore was not merely a question of granting it to one government but of withdrawing it from another. This posed and continues to pose unique problems.

According to unofficial accounts, Great Britain granted recognition to the Communist Government of China in order to help maintain British trade relations, to safeguard her stake in China (estimated at pounds 270,000,000), to protect Commonwealth interests in Hong Kong, and to mesh her policy with that of Burma and India. Though asserted to be consonant with both diplomatic practice and international law, the recognition was yet granted with notable lack of enthusiasm and was received by the Communist leaders with equally cautious skepticism. Indeed it was not until the Geneva Conference that the Communist Government even agreed to accredit a charge d’affaires to London. Whether Britain accomplished or failed to accomplish her purposes by extending recognition is not altogether clear. What is clear is that she felt no large political, economic, or strategic interests were to be promoted by a policy of non-recognition. She took an attitude that attaches little extralegal importance to recognition. It tidies up title to property, it furnishes some means of protecting investments and nationals, and it regularizes treaty relations. It has little symbolic and only limited practical significance.

Rightly or wrongly, American ways of thought are conditioned by a different experience and a different sense of identification with the Far East. The Pacific War from Pearl Harbor to the end was, in a sense, ‘our’ war, and competed with that in Europe. It was not merely a secondary front as in English eyes. The loss of China to the Communists came as a sequel to that war. Even if this loss is not attributable to lack of American foresight (and no one who has carefully read the celebrated MacArthur hearings of 1951 can fail to see that the issues were too complicated for such an oversimplified assertion), it is yet identified with loss of American prestige. Non-recognition keeps alive the hope that the decision is not irreversible. Recognition thus has symbolic value at home. It also has such a value abroad. To recognize the Communist government would be considered – according to this view – a signal of retreat, if not of defeat, in the Cold War. As such, its repercussions would be profoundly felt among all the free peoples of the Far East, including 12,500,000 ‘Overseas Chinese’ spread over a dozen areas stretching from Japan to Sarawak, for whom Formosa remains a bastion of freedom and hope. More important, it would mean the displacement of a friendly ‘ally’ by a self-avowed ‘enemy’ and would thus impair our future security and impose a strain on our sense of moral fitness and integrity. Many of our military leaders have proclaimed Formosa a link in the Western Pacific defense chain more vital than Korea – where the United States suffered casualties only slightly fewer than in the First World War and greater than in four or her other wars combined. To deny Korea to the Communists while handing them Formosa does not appeal to the American sense of realism. Furthermore, to jeopardize the safety of 10,000,000 friendly Chinese on Formosa while refusing to repatriate 22,500 prisoners of war who were either afraid or unwilling to return to their country of origin, fails to appeal to the American sense either of realism or fair play.

Opponents of the American view are, of course, not insensitive to the peculiar difficulties attending the Formosa question. The promise to return Formosa to ‘China’ was made at Cairo (1943) and confirmed at Potsdam (1945), yet technically it was still part of the Japanese empire at the time of the flight of the Generalissimo. Its present status remains anomalous, even following the peace treaty signed with Japan (to which neither Mao’s government nor Chiang Kai-shek’s was a signatory). The Cairo and Potsdam promises did not visualize the present tragic stalemate, and hence suggestions have been made that Formosa be declared an independent state, or that she be neutralized, or that she be put under the special aegis of the United Nations, or all three. It is not likely that any of these solutions would prove acceptable to American opinion, especially as they leave unresolved the difficult problem (to be mentioned later) of seating ‘The Republic of China’ in the Security Council of the United Nations and in its 45 other organs.

This cleavage in political views produces a dilemma, the resolution of which is extraordinarily complex. Furthermore, American diplomacy has lost much of its capacity for maneuver owing to the hard channels set by public opinion and the exigencies of domestic politics. This is an adventitious rather than a necessary consequence of democratic control over foreign policy, since public opinion will respond not alone to specific issues but to the way those issues are framed and presented by political leaders.

[Issue of recognition]

For several centuries the issue of recognition has been framed, presented, and discussed in the setting of legal criteria. Basically two types of such criteria have been used. One type, which stresses objective factors, follows what might be called the classical tradition; the other, which stresses subjective factors, departs from this tradition. Great Britain and the United States have each used both types in their history. At the present time Great Britain is applying to the recognition of China the objective test (sometimes inaccurately called the de facto test) while the United States refuses to do so.

Stated sharply, the objective test, declares that recognition is concerned not with opinions but with facts. Whether the facts are good or bad, pleasant or unpleasant, is equally irrelevant. The criterion purports to be simple and clear. It is stripped of all subjective, moral overtones in deference, it is siad, to the complexities of human life and the need for the orderly management of international relations. ‘We recognize Communist China’, a conservative British member of parliament is quoted as saying, ‘as we recognize a rainy day in summer or Mount Everest. We recognize it because it is there.’

The objective test looks exclusively to ‘effectiveness’ of governmental control. If the new government commands the obedience of the bulk of the inhabitants in the territory and appears to be reasonably permanent, it should, according to this view, be recognized as the legitimate government of the territory. Evidence of the obedience of the people is gathered simply from their manifest behavior in rendering military service, paying taxes, and otherwise failing to resist the normal processes of government.

The ‘subjective’ test is more complex and much more difficult to apply. At least three variants should be noted. One variant looks exclusively to the origin of the government; another ignores the origin but insists, as a price for recognition, that the government be subsequently approved by the people; while still another, by all odds the most significant, insists that the government, be ‘able and willing’ to live up to its international obligations. Elements of all three of these variants are visible in various statements of contemporary American policy.

[American policy: Jefferson vs. Seward]

Despite present adherence to the subjective test, the main stream of American policy has undoubtedly tended to support the objective view, since this view alone is consistent with our own origins and our own vigorous espousal of the ‘right of revoltion’. Perhaps the most celebrated of the nineteenth century statements supporting this view is contained in a letter from Jefferson as Secretary of State to Gouverneur Morris, then Minister to Paris. Morris, asking for instructions and guidance, had written that another revolution had been effected; that it was bloody and that ‘he found himself in a state of contingent responsibility of the most delicate kind’. Jefferson replied: ‘We surely cannot deny to any nation that right whereon our own Government is founded – that every one may govern itself according to whatever form it pleases, and change these forms at its own will; and that it may transact its business with foreign nations through whatever organ it thinks proper, whether king, convention, assembly, committee, president, or anything else it may choose.’

The objective test, as announced by Jeffeson, was an emphatic reply to the efforts by the Holy Alliance to resist the apocalyptic fervor generated by the French Revolution by denying the right of recognition to any government whose origins were tainted by violence.It was reaffirmed by successive secretaries of state, including both Webster and Buchanan, the latter stating unequivocally that ‘We do not look behind the existing government to involve ourselves in questions of legitimacy.’

The origins of the objective view antedated Jefferson by at least a century and a half; but, since its early American formulation was intimately linked to the ‘right of revolution’, it is not surprising to find deviations both in theory and practice when that right became the object of doubt. The Civil War period gave rise to such doubts, as did the Bolshevik revolution of 1917-18.

The ‘subjective’ view was introduced by Seward, who refused to accord recognition to the new governmets of ‘republican’ states unless the government was constitutionally legitimate. Seward somewhat disingenuously claimed that he was moved to take this attitude by reflecting ‘upon national trials of our own’. Lying back of his attitude, however, were changed notions of the right of revolution reflected in the writings of Union theorists who asserted that revolutions directed against democracy were not legitimate since democracies, unlike tyrannies, provided a rational alternative to the use of violence. For logical and practical reasons to be noted hereafter, the Civil War deviation from the objective test did not recommend itself and was for the most part abandoned until partially restored at the time of the Soviet Revolution.

[Initial non-recognition of Soviet regime and Latin American nations by the USA]

The official United States attitude regarding the nonrecognition of the Soviet regime articulated by Colby, as Secretary of State in 1920, differed somewhat from that adopted by Seward. Whereas Seward had placed emphasis on legitimacy of origin, the nonrecognition of the Soviet government was placed primarily on two other grounds. The first emphasized the lack of subsequent legitimation and the second stressed Soviet unwillingness to live up to the requirements of international intercourse and the obligations of international law as evidenced by its repudiation of the Imperial Government’s debts and its official espousal of hostile propaganda directed against other governments.

The notion that a government should not be recognized unless it has subsequently commanded the ‘approval’ – as opposed to the mere ‘obedience’ – of the people has been the object of lively debate and its bearing on contemporary policy is evident. Those who approve the doctrine ascribe its American origins to Jefferson, who is thus quoted, as usual, on both sides of a controversial issue. Four months prior to the letter previously mentioned, he had written Morris that ‘It accords with our principles to acknowledge any government to be rightful which is formed by the will of the nation, substantially declared.’

It is more than likely that Jefferson, who shared the optimism so prevalent in the eighteenth century, expected that popular consent would almost automatically confirm and acclaim the credentials of governments that had been created by the popular will. It is possible, too, that theorists then doubted whether any revolutionary government was in fact firmly in the saddle which failed to accord this right to the people. In any event the test was capable of such elasticity of application that it did not become a major issue until Wilson’s time. Besides applying it to support the nonrecognition of the Soviet Government, Wilson also applied it in Latin America.

In practice it had little to commend it. Its application in Latin America, according to both hostile critics and detached observers, resulted rather in compulsion, corruption, and rigged elections (to provide evidence of the popular will) than in a free expression of approval or concent. ‘You cannot’, so the saying goes, ‘shoot people into self-government.’ It may be added that you cannot unilaterally supervise them into it either. Furthermore, a rigid application of the test today would rule out the claim to recognition of over half the governments of the world.

The idea that consent may be evidenced by a ‘supervised’ election (as in Greece in 1948) would be appealing if the international society were strong enough to support it. Meanwhile, experience clearly discloses that supervision by powerful states, whatever their motives, inspires a feeling of resentment that is likely to be heightened rather than diminished by the lofty reasons usually given for minding the smaller nations’ business. Nor is this all. The transmission of power from one government to another is often accompanied – as witness the Nazis – with impeccable solicitude for constitutional forms. This makes it almost impossible to determine whether the new government actually registers the will of the people or merely commands it.

Difficulties determining an elusive ‘popular consent’ led to a device whereby the test was preserved in form while abandoned in substance. This was accomplished by simply declaring that popular consent could be shown by ‘long-continued acquiescence.’ Thus when pressed to explain the reasons for our continued nonrecognition of the Soviet regime, Charles Evans Hughes, in a famous letter to Samuel Gompers written in 1924, declared that while the United States Government put stress on the value of expressed popular approval, ‘it has never insisted that the will of the people of a foreign state may not be manifested by long-continued acquiescence in a regime actually functioning as a government.’ The day appears still distant when the international community will be able to compel powerful governments to subject their legitimacy of origin to the process of a controlled plebiscite. In the absence of such control, the test seems weak at both theoretical and practical levels.

The final variant of the subjective test – ‘ability and willingness’ to live up to international obligations – is said to have originated with President Hayes; yet it, too, derived its chief impetus from Woodrow Wilson, who applied it with considerable vigor between 1910 and 1913 in Mexico, Honduras, Nicaragua, Costa Rica, and elsewhere. While the proclaimed object was to stabilize conditions in those areas, it became the subject of widespread criticism at home and abroad. It was widely characterized as a meddling, ‘do-gooder’ policy in which questionable motives were masked by misplaced idealism, to the great detriment of the practical conduct of foreign affairs. Nonetheless, after its revival at the time of the Bolshevik Revolution in 1917 it was used until 1933 as one of the chief justifications for the refusal of the United States to recognize the Soviet government, a government which other nations had, for the most part, recognized by 1924.

The recognition of the Soviet government, advocated then, as earlier, by many eminent Republicans as well as Democrats, marked a partial return to the more classical tradition which, in effect, dominated the officially declared policy of the United States until the Second World War. A reversion to subjective criteria after the Second World War was not, however, altogether without analogies drawn from another quarter.

[Recognition of new states]

The recognition of new ‘states’ (e.g. Israel) in contradistinction to that of new ‘governments’ had also traditionally been attended by a dispute as to the weight to be given purely subjective as opposed to mere objective criteria. Institutional developments in the period between the two world wars, including in particular the procedural devices set up in the Covenant of the League of Nations for determining aggression (Articles XI through XVI) and the adoption of the Kellogg-Briand Peace Pact of 1928, had stimulated a novel movement, culminating in the famous Stimson Doctrine of nonrecognition (1931). This doctrine proclaimed that the credentials of illegitimate power were tainted and hence the absorption of old states or the creation of new ones, contrary to the obligations of theCovenantand the principles of the Pact, would not be attended by recognition. Since the policy was to be applied in the face of facts it represented a clear triumph of the subjective over the objective view. For these proclaimed reasons the United States and many other nations refused to extend recognition to Manchukuo during the entire period of its existence and for similar reasons it refuses today (unlike Britain) to recognize absorption by the USSR of Estonia, Latvia and Lithuania.

Whatever may be true of the recognition of new states, the application of subjective tests for the recognition of new governments is, according to many critics, impractical and illogical. To say that a government must be ‘able’ to live up to its international obligations is simply a tautological way of saying that it must be an ‘effective’ government; while, to say that it must be ‘willing’ to do so, is not likely to induce compliance, especially as nonrecognition strips away the normal means of applying diplomatic pressure. Thus frustration and futility are compounded. Stated somewhat differently, the use of nonrecognition as a ‘sanction’ for enforcing obligations is likely, according to this view, to be a fruitless exercise in moral finger shaking, an exercise calculated to irritate its object without compelling it to deliver the goods.

Enough has been said, perhaps, to point up the origins and differences between the two tests. Their application by the United States and Great Britain can hardly be characterized as uniform or consistent. Great Britain, for instance, applied the ancient test of legitimacy of origin when it dealyed for three years the recognition of the successor government of the king of Serbia following his assassination in 1903. The failure to recognize was not considered to be without moral significance. Likewise in 1912 she delayed the recognition of the government of Sun Yat-Sen, following the downfall of the Manchu dynasty, until the republican regime had been fortified by evidence of subsequent legitimation. She took a similar view in 1870, delaying her recognition of the Third Republic of France, and again in 1910 when she took a dim view of the new government of Portugal. Furthermore, both the United States and Great Britain refused to recognize the new government of Argentina, claiming it had failed to gear its policies to those states of South America that were anti-Nazi. The Second World War imposed other strains, explained by the exigencies of the war, on traditional doctrine. The various governments-in-exile exercised no effective control over the bulk of the inhabitants of their territories during the time of the Nazi occupation; yet they were freely recognized for practical and symbolic reasons. And examples could be easily multiplied.

Despite these deviations it is safe to assert that the predominant test applied by both the United States and Great Britain to revolutionary governments has been the objective one. (In the eighteenth and early nineteenth century the United States was more ready to extend recognition than Great Britain; in the twentieth century the situation is reversed.) This test is more consistent with traditional tenets of international law and more compatible with the institutional pattern of international society than is the subjective.

[The right of revolution]

One aspect of the objective test in relation to the ‘right of revolution’ deserves mention. It may be quite reasonable to proclaim, as the Union theorists did at the time of the Civil War, that no revolution within a democratic order is legitimate, since democracy affords a rational alternative to the use of violence. But this theory, whatever its domestic uses and virtues, can have no logically valid application to the international order so long as states insist on retaining the full attributes of soverignty. One of the attributes of soverignty is that one soverign state is free of interference in its domestic affairs by another. This principle is underlined and emphasized in Article II of the United Nations Charter. The international order, therefore, provides no rational alternative to the use of violence, so long as violence is contained within the bounds of a particular state. Since it provides no alternative to the domestic status quo, it cannot assume the function of perpetuating it. ‘Treason’, the gravest of all offenses against authority, thus has no place in the presently constituted international order. It is partly for this reason that the subjective test based on legitimacy of origin has not found wide acceptance. This is not truce, however, of the other variants of the subjective test. Whether they can be accomodated as part of a logically coherent international order or whether the objective test is to be preferred will depend on a searching appraisal of the kind of international order the nations consider practical and worthwhile. This hinges on value judgments that lie at the very heart of the differences separating the objective and subjective views.

[Objective and subjective views on recognition]

Basically, the objective view espoused by Great Britain rests on the notion that the international society, quaintly known in former times as the ‘family of nations’, is best served by promoting ‘order’. International law, therefore, is directed less at attaining justice than at avoiding chaos; less at promoting democracy than at accomodating it; less at injecting ideologies into the welter of international relations than at tempering their impact. In the classical tradition order is paramount. To recognize a fact is to register an opinion as to whether it exists while avoiding a disturbing judgment as to whether it is good or bad, dangerous or harmless. This spirit of restraint may offend reformers who insist on asserting moral values; it should not offend those who hold that order is a precondition to attaining all other values. So runs the argument. Under this view membership in the international community whether of states or governments is almost automatic and in any event is not like a private election to a society of church elders.

The subjective view espoused by the United States challenges the premise on which the whole position rests. In supporting ‘moral’ criteria the United States is, in effect, exhibiting a willingness to reach beyond order as a key value and to introduce, instead, values of a different kind, such as decency, justice or freedom as conceived by the dominant traditions of the West. So viewed, the United States’ position is in keeping with certain other contemporary movements, notably those to ‘outlaw war’ and to make ‘aggression’ a legally punishable offense. It is thus part of a broader general attitude which, in recent years, has been the object of critical attack by Mr.George Kennan, Mr.Hans Morgenthau, and other ‘realists’, who see in appeals to moral values a misplaced application of ideas relevant to individual conduct but out of place in the harsh world of power politics. Linked with legal criteria these values, so it is asserted, tend to put diplomacy into a strait jacket, thereby inhibiting its freedom of action and cramping its capacity to reconcile conflicting interests through patient compromise and adjustment.

This basic value dispute finds an exact counterpart in the division of opinion concerning the related issue of representation in the United Nations. The problem of representation technically hinges on the validation of governmental credentials which, in turn, involves disputes as to the veto, the double veto, and Rule 30 of the Security Council Rules of Procedure. It also raises the question of a two-thirds as opposed to a majority vote in the General Assembly and what relation membership in the General Assembly bears to that in the 45 other organs of the United Nations. These vexing questions need not detain us. Fundamentally the issue reveals the same underlying cleavage between two ways of looking at the international order and the values it is intended to serve.

According to the objective view, the issue of Chinese representation is reduced to a simple question as to which of two governments does in fact represent the state of China. The state of China is already a member of the United Naitons and, as a member, is legally entitled to be represented by some government or other; to deny this right to a government exercising effective control over the territory and commanding obedience from the overwhelming majority of the inhabitants is, in effect, to deny to the state, itself, the basic right to be represented. The homely analogy is drawn of a lawyer and his client. The credentials of the lawyer (i.e., his right to represent his client) are not tarnished because his client may be a wicked fellow. You may deal with wicked individuals in many ways – as by suspending their right to enjoy the company of their fellows – but you do not confuse the punishment inflicted on them with the nature of their right to be heard. So it is with the United Nations.

The objectivists further point out that criteria exist for refusing to admit new states and for expelling or suspending the membership of others. These criteria, which are set out in Article IV of the Charter, correctly emphasize the ability and willingness of a state to live up to the obligations of the Charter. But these criteria have nothing whatever to do with the fact of representation; indeed, to assert the binding quality of obligations as a condition to the right of representation is to presuppose the existence of a government capable of carrying them out. This is the logical and legal argument advanced by those who see in the continued refusal to seat the Communist government of China a violation both of law and logic. The logical argument is forcible enough to suggest that its denial must rest on grounds which not only question the conclusion but challenge the premise.

The subjectivists challenge the premise by categorically asserting that as a group acting collectively the members of an international society can jolly well do what they choose so long as they not violate their own charter or international law. The subjectivists argue that if they choose to impose conditions on representation as well as conditions on membership, what is there in law or logic to deny them the right to do so? In the absence of a specific inhibition (and the Charter of the United Nations is silent on the point), the majority are legally privileged to deny representation to any state whatever unless, to repeat, there is some restraint on freedom of action required by international law.

Whether international law imposes such a restraint is hotly disputed. The objectivists claim it does, because to deny ‘China’ the right to be represented is to deny that the state is ‘independent’. The practical fact that the Communist government has been officially declared an aggressor in the Korean conflict has tended, however, to lift the argument out of the more abstract realm of theory, since clearly the principles and purposes of the Charter do not permit the opening of the United Nations’ doors to a government branded as its enemy.

The issue of seating the Chinese Communist representative has been raised about 150 times in the 46 organs of the United Nations. Inevitably the attempt was made to find criteria to judge the adequacy of representation. It is perhaps significant that projected ‘subjective’ tests, notably those proposed by Cuba, have not been found acceptable; nor, on the other hand, have tests limited to the single objective norm of ‘effectiveness of control’ won the approval of the majority. The upshot of many committee meetings and debates is telescoped in the single sentence that ‘the question should be considered in light of the Purposes and Principles of the Charter and the circumstances of each case.’ This vague standard leaves adequate scope for the continued application of the diplomatic process – a process which up to this point has been wielded with singular success by the United States.

It may be argued that allusions to the ‘Purposes and Principles’ of the Charter automatically rule out the Communist Government; and so it should, so long as that government is condemned of aggressive action directed against United Nations forces. Once the aggression is deemed ‘officially’ ended, the picture may change, in which event we may expect a renewal of the argument with its focus sharpened on the purposes of the organization as revealed by its Charter.

The long-range purposes and principles of the Charter permit conflicting interpretations and reflect varying value judgments. Two contrasting views should, in particular, be noted. On the one hand it is alleged, as by Great Britain, that the organization is not an exclusive club designed to accommodate like-minded nations with similar governments and ideologies. Nothing in the Charter bars Communist governments. On the contrary, the organization can only accomplish its mission – to keep the peace and to promote conditions making for peace – if it is universal in scope. Clearly if it is to exercise a restraining influence on the conduct of recalcitrant governments, those governments in particular should be represented. Opposed to this is the view, supported by the United States, which affirms that the Charter rules out nations that are not ‘peace-loving’. In addition, the Charter presupposes the willingness of its members to make the organization work, i.e., to accomplish its purposes and principles. To admit the Communist government of China, as its record clearly shows, is not to promote the purposes and principles of the Charter but to thwart them. It is to invite additional obstructionism and frustration already made distressingly familiar by the conduct of other Communist governments. The minimum requirement for recognizing the credentials of any government should be demonstrated badge of good faith – not one tarnished by the blood of its own members and not one bent on reducing the organization to a state of feverish futility. These two contrasting views appear to be implicit in the larger conflict of values to which illusion has already been made.

[Practical consequences of recognition]

If we turn from theory and values to the practical consequences of recognition, the same dilemmas remain. International law (one school excepted) and diplomatic practice agree that the failure to recognize need not imply a complete severance of relations; nor need it imply an absurd disregard of facts. The recognized government of Chiang Kai-shek was not vested by the United States with responsibility for the mistreatment of American consuls in Mukden and elsewhere or for intervening in the Korean conflict. And the nonrecognition of his government by Great Britain did not prevent her from esstablishing a consulate atTaihoku in Formosa. During the days of mutual nonrecognition between the Soviet Union and the United States some trade was carried on between them, and both governments not only engaged in international conferences but became co-signatories of multilateral pacts such as the Kellogg-Briand Peace Pact of1928. Furthermore, joint membership in international organs does not automatically imply recognition, as both past experience in the League of Nations and current practice in the United Nations Organization demonstrate. At the same time, the consequences flowing from recognition are legally important, and there is no doubt that a state of long-continued nonrecognition is politically inconvenient, though the Iron Curtain may have made this inconvenience of less consequence than previously. All this suggests that the significance of recognition has been exaggerated. No doubt this would be true were it not for the status of Formosa, the critical position of the ‘Republic of China’ in the United Nations, and the symbolic significance that recognition commands in the United States.

The dilemma, therefore, remains. Whether the British objective view or the American subjective view is better calculated to promote the total security and to advance the basic values cherished by the West may be debatable. What is not debatable is that the division between the two greatest powers of the free world imposes an added strain on free-world solidarity. The elimination of that strain must be sought by combining diplomatic skill with legal imagination. The great virtue of ‘law’ in resolving diemmas consists in its capacity to narrow the area of conflict and to give to the solution of controversy an impersonal quality. This reduces the opportunity for the hardening of emotionally-charged attitudes and frees diplomacy from the rigid channels so frequently imposed by public opinion. Yet, the resolution of the present dilemma by recourse to legal criteria, as our story shows, would hardly be possible short of agreement on deeper problems of value. On the other hand, the resolution of the dilemma by diplomacy must depend on circumstances difficult to control and now only dimly seen. To do nothing at all is not to solve problems, but to live through them and to await rather than to control events.

[Conclusion]

Most of the governments of the world owe their origins to revolutionary violence, and the history of prior revolutions appears to show that ultimately ideal solutions, registering moral values, must make a rough compromise with the realities of power and the facts of life. If this is so, consideration should perhaps be given to the vexing problem of Formosan independence and even to an amendment to the Charter of the United Nations which, despite the many difficulties attending the use of the veto, would alter the status now occupied in the Security Council by the Republic of China. Diplomacy and law should join hands to reduce to manageable proportions a dilemma now merely awaiting the drift of events. After all, the art of statesmanship requires that events be molded, not merely endured.

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