It is said that no branch of international law has been so badly misunderstood and needlessly confused as that of the recognition of new states and new governments, that recognition has been the football of diplomats who have made it mean anything that suited their purpose, that it has certainly been grossly abused as a weapon of diplomatic pressure and intervention, that it has in many cases proved to be an insoluble puzzle to the courts whose decisions have been sometimes conflicting and confusing, that it has been a plaything for the political scientists who have taken delight in posing abstract problems of a theoretical nature, and that it may be anything or nothing. Nevertheless, we must penetrate into this subject, unshaken by these facts, and draw a conclusion through scientific objectivity and coldmindedness, because the people of the Republic of China, are facing the toughest moment the problem has created for us.
Whether the recognition is de jure or de facto, the prerequisite for a new state or a new government to be recognized is that it has sovereign power to enforce its authority within its territory, that is, it is free from foreign control. Here we may recall a striking example laid down in the practice of international law by the late Henry L. Stimson, ex-Secretary of State in the United States, in expressing the view of his government to the Sino-Japanese dispute in the thirties. As it became apparent that Japan was going to create a puppet state in Manchuria as its political tool, Mr. Stimson addressed notes to both Japan and China on January 7, 1932, in which he announced the policy of "non-recognition" of a new state brought about by external force. It was said that the United States "cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic or China, commonly known as the open door policy; and that it does not intend to recognize any situation, treaty or agreement which may he brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which Treaty both China and Japan, as well as the United States, are parties." The principle contained in this statement was later accepted by the League of Nations as well as by many governments in dealing with cases of recognition. Now the Communist regime in the Chinese mainland is obviously a satellite of, though not a component part of, the Soviet Union. It was created by the directives and material assistance from the Kremlin, and of course cannot be recognized as a new government of China. The legitimate government of China has thus submitted an item to the United Nations on "threats to the political independence and territorial integrity of China and to the peace of the Far East, resulting from Soviet violations of the Sino-Soviet Treaty of Friendship and the Alliance of August 14, 1945 and from Soviet violations of the Charter of the United Nations." In a letter of April 12, 1950 to the Chairman of the Interim Committee of the General Assembly, the Chinese representative declared that "the Soviet military aid to the Chinese Communists is cleary an aggression against my government and constitutes a violation of the Charter of the United Nations." The satellite nature of the Chinese Communists also explains clearly the initiation by the Soviet Union in the Security Council on December 29, 1949 and, on January 10, 1950, of resolutions to exclude the Chinese representative from the Council, and the use of the term "Kuomintang group" on August 1, 1950 when the Soviet representative again called for a discussion of the recognition of the Chinese Communist regime.
The next basic point at which one may decide whether a new state or a new government should be recognized is the faithfulness in discharge of its obligations in international law. Hans Kelsen maintains that the legal act of recognition is the ascertainment (la consatation) that certain requirements, prescribed by international law, have been fulfilled by a legal community or a body of persons (government). Professor H. Lauterpacht in his famous work "Recognition in International Law" (1947) also asserts that international law determines the requirements of statehood. In his "A Modern Law of Nations" (1948) Philip Jessup proposes that the United Nations General Assembly may by general convention or declaration establish the essential criteria of Statehood, provide for a finding that a particular entity possesses the required attributes and, pledge members not to accord recognition to new states except in accordance with a standard procedure. Then, to what extent is the Communist regime in Peiping in accord with principles of international law? The answer is completely in the negative. They have thus far given quite enough evidence to show their opposition to the human sense of morality and justice. Either in the battlefield of Korea or in the forum of the United Nations they proved to be ignorant of the minimum standard of behavior established by modern nations.
In addition to the foregoing requirements, a study of the practices of states reveals that considerations which have been weighed by foreign offices in determining whether to re cognize a new state or to defer or withhold recognition, include: the stability and effectiveness of its government, and perhaps an estimate of its permanence as indicated by popular support; the extent to which it commands international support; the extent to which its establishment affronts principles of dynastic or constitutional legitimacy; whether its recognition would offend an ally or be otherwise premature; whether its recognition would not go far to support legitimate enterprise of the recognizing state or be politically advantageous; the use of non-recognition as a sanction of international policy or of international law. Considering these we cannot see anything that sheds favorable light upon Communist China.
It should be noted, however, that the principle of continuity and validity of acts of de facto governments have been a pretext for some governments, notably the United Kingdom, to accord recognition to the Peiping regime. In the decision of the United States Supreme Court in the case of Horn V. Lockhardt, arising out of the Civil War, which concerned certain acts performed under the Government of the Confederacy, these principles were evoked. The Court in this case observed that: "The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws….. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution." Even for this reason recognition is not urgent in the case of Mow-tse-tung. "The recognition of a new state has been described as the assurance given to it that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations." (Henry, L. Stimson), and nothing will be so contradictory to the principle of justice and international law as well as the ends of the United Nations if this organism of aggression and terror be admitted into the civilized society of nations.
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'What a man dislikes in his superiors, let him not display in the treatment of his inferiors; what he dislikes in inferiors, let him not display in the service of his superiors; what he hates in those who are before him, let him not therewith precede those who are behind him; what he hates in those who are behind him, let him not therewith follow those who are before him; what he hates to receive on the right; let him not bestow on the left; what he hates to receive on the left, let him not bestow on the right:—this is what is called "The principle with which, as with a measuring square, to regulate, one's conduct."'
The Great Learning.
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'The Way of Heaven has no partialities, But always sides with the righteous.'
Lao Tzu