¹ See Dean, Arthur, “United States Foreign Policy and Formosa,” 33 Foreign Affairs 360 ff. (1955).CrossRefGoogle Scholar

² The confidential transcript of the Round Table Conference on American Policy toward China, held in the Department of State in October, 1949, among about thirty officials, business men, and educators with direct knowledge of China, was released in October, 1951. The participants believed that the Communist government was about to take over China, that it would do so with acquiescence of the people, and that it should be recognized by the United States, though there were some differences as to the advisability of delaying recognition as a bargaining matter or to permit a more favorable opinion to develop in the United States. See pp. 410 ff., especially statement of William R. Herod, International General Electric Co., p. 422. The report on American Policy toward China published by the New York Council on Foreign Relations in March, 1950, after British recognition of the Communist government but before outbreak of the Korean hostilities, tabulated the opinion of 720 leading business men, lawyers, educators, journalists and others in 23 large cities distributed over the United States. On the proposition, “Effective military opposition to the Chinese Communist regime on the mainland of China has come to an end,” 90% agreed, 8% were uncertain, 2% disagreed. On the proposition, “The result of the civil war in China was largely the product of internal Chinese processes,” 65% agreed, 17% were uncertain, 18% disagreed. On the proposition, “The United States should recognize the Chinese Communist regime if that regime provides acceptable guarantees covering American lives and property and agrees to carry out China’s treaty obligations,” 56% agreed, 24% were uncertain, 20% disagreed (pp. 6, 9, 11, 37). See also Earl H. Pritchard, “Political Ferment in China, 1911–1951,” and Taylor, George E., “The Hegemony of the Chinese Communists, 1945–1950,” 277 Annals of American Academy of Political and Social Science 1 ff., 13 ff. (1951).CrossRefGoogle Scholar

⁸ George S. Gale, labor editor of the Manchester Guardian, on returning from a visit to China with the British Labor Party group headed by former Prime Minister Clement Attlee in September, 1954, said: “I think it is absolute tripe to imagine that if China were given free elections, she would choose any government but a Communist one. … There is no doubt whatever that the present government of Mao Tse-tung and Chou En-lai is the effective government of China and not only the effective government of China but the most effective government the place has ever had. … Basically China has been cleaned up physically. … They are getting themselves industrialized at a pretty fast rate and with a certain amount of success. … They claim, probably with a good deal of exaggeration, to have brought the major diseases of the country under control. … The improvement in communication has been effective. It has helped pretty largely in bringing rice surpluses from the south, east, or wherever else it is, to the areas which suffered from a lack of basic foods. … There is no bribery, no corruption, in the administration of the place.” This appears to reflect the general impression of the Labor Party group (University of Chicago Round Table, “Red China: Conflict in British and American Policy,” Sept. 26, 1954, pp. 4, 7). Alfred le S. Jenkins in the Office of Chinese Affairs, Department of State, though vigorously criticizing the barbarities and breaches of international law by the Communist regime, as did the British labor group, and asserting that the Communist government did not represent the masses of the Chinese people and ought not to be recognized, wrote in January, 1955: “The streets are reported to be eleaner, and there have been spotty advances in public health. … There have been some advances in industrial recovery and in new industrial enterprises. … It would be a mistake to assume that there is not tremendous force behind the so-called ‘New China.’ Most of this force derives from the energy of the true Asian revolution, which in China has been captured and imperfectly but dangerously harnessed by communism—but force is there. … Last but not least, the Chinese Communist regime, while it has certainly not brought to the Chinese a national dignity by its lawless acts, has managed to get very much into the limelight and with Soviet help has achieved a military potential of menacing proportions. … Even those Chinese who in their hearts oppose the regime must derive some satisfaction from this ‘prestige,’ even though they may have vastly preferred that it be attained by more honorable means.” 32 Dept. of State Bulletin 6–7 (1955). In an address of March 21, 1955, Secretary of State Dulles, while regretting Chinese Communists’ “intoxication” with “successes” and their apparently exaggerated opinion of their actual power position, recited an impressive list of “successes” flowing from the military and political consolidation of China since they “completed conquest of the China Mainland” in 1949. Ibid. at 551. Utilizing available statistics, Alexander Eckstein concluded: “The Chinese economy—after being more or less stationary for centuries, with only erratic and partial spurts of growth in recent decades—seems to be entering, for better or for worse, a self-sustaining growth process.” “Conditions and Prospects for Economic Growth in Communist China,” 7 World Politics 434 (1955). Rostow, W. W. and Associates, in The Prospects of Communist China (New York, Wiley, 1954)Google Scholar, support the above points with extensive data (pp. 171, 278) and present a well-balanced summary of the factors—economic, social, cultural, administrative, and political—favorable and unfavorable to continuance of the regime (pp. 44, 122, 142). Though he considers the prospects on the whole favorable, he notes that the initial energy and success of the regime may flag out after a generation or two as in the case of the Ch’in (225–206 B.C.), Sui (589–618 A.D.), and Yuan (1280–1368 A.D.) dynasties (p. 120).

⁴ Information obtained from United Nations Secretariat, June, 1950. See also United Nations Year Book (1950) 427, 429. The Communist states recognized the Peking government in October, 1949, Burma and India followed in December, most of the rest in January, 1950. News reports indicated that Australia, Canada, New Zealand, South Africa, France, Egypt, Mexico and the United States were seriously considering recognition at that time.

⁵ Great Britain v. Costa Rica, 1923, 18 A.J.I.L. 147 ff. (1924) ; Annual Digest, 1923–24, Case No. 15. The tribunal held that the Tinoco Government of Costa Rica, though in control for only two years, was a “general de facto government” capable of “representing the state” and “binding the nation” because “its power was fully established and peacefully exercised” during that period. It failed to obtain recognition from a majority of the states of the world, including the United States, Great Britain, France, and Italy; and was established in violation of the Constitution of Costa Rica and of the Tobar doctrine opposing the recognition of revolutionary governments, accepted by the Central American Republics in the Treaty of Washington of 1907. That treaty permitted the recognition of revolutionary governments after validation by free elections, but the treaty of 1923 which superseded it omitted this qualification. The United States followed the more rigorous non-recognition policy in regard to the Tinoco regime which had been established in 1917 and validated by elections. See Lauterpacht, H., Recognition in International Law (Cambridge, at the University Press, 1947) 104, 129Google Scholar; Briggs, H. W., The Law of Nations (2nd ed., New York, Appleton-Century-Crofts, 1952) 201 ff.Google Scholar

⁶ Lauterpacht, Recognition 97, 115. See also British statement, 1950 United Nations Year Book 430 ff.

⁷ According to these figures from the Britannica Book of the Year (1954), Formosa (Taiwan) has 1/277 of the area and 1/47 of the population of China. By the census of 1953 China claimed a population of 582 million. The population of Formosa includes over a million military and civilian refugees from China who came to Formosa since 1949 and 150,000 aboriginal Formosans of Malay stock, but consists mainly of “Formosa Chinese” whose ancestors came to Formosa centuries ago and who were greatly influenced by half a century of Japanese rule.

⁸ Wright, Q., “Some Thoughts about Recognition,” 44 A.J.I.L. 557 (1950)Google Scholar; Legal Problems in the Far Eastern Conflict (New York, Institute of Pacific Relations, 1942) at 145, 182 ff.

⁹ Lauterpacht, Eecognition 24. See also his letter to the London Times, Jan. 6, 1950, distributed by the British Information Service, Washington 6, D. C., Jan. 10, 1950, the date of British recognition of the Chinese Communist government.

¹⁰ League of Nations, Appeal of the Chinese Government, Eeport of the Commission of Enquiry (Lytton Commission), Oct. 1, 1932, pp. 66 ff., 107 ff., 127; Trial of the Major War Criminals before the International Military Tribunal (Nuremberg, 1947), Vol. 1, pp. 192 ff.; United Nations Year Book (1950) 433; notes 14–17 infra.

¹¹ Lauterpacht, Recognition 6, 51.

¹² Lauterpacht discusses these issues with great acuteness and abundant citation, ibid. at 98 ff. See also Debate in General Assembly, United Nations Tear Book (1950) 429 ff.

¹³ Jefferson said in 1793 the “will of the Nation” was the “essential thing to be regarded” (note 40 infra), and in recent years the United States has often insisted upon support by “free elections” before recognizing revolutionary regimes.

¹⁴ Wright, Q., Problems of Stability and Progress in International Relations (Berkeley, University of California Press, 1954) 222 ff.Google Scholar

¹⁵ Virginia Beach Memorandum on The Problem of Recognition, in Wright (ed.), Legal Problems of the Far Eastern Conflict 193.

¹⁶ Lauterpacht, Recognition 427. See also Wright and Lauterpacht, in Wright (ed.), Legal Problems of the Far Eastern Conflict 115 ff., 143.

¹⁷ United Nations Year Book (1948–1949) 296. See also Ibid. (1950) 431.

¹⁸ Ibid. (1948–1949) 298.

¹⁹ Ibid. (1951) 264.

²⁰ United States Relations with China with special reference to the Period 1944–1949 (Department of State, Washington, D. C., August, 1949). Secretary of State Acheson summarized this voluminous material: “It (the Communist revolution in China) was the product of internal forces, forces which this country tried to influence but could not. A decision was arrived at within China, if only a decision by default.” (p. xvi.)

²¹ Note 2 supra.

²² Virginia Beach Memorandum, note 15 supra; Lauterpacht, Recognition 420 ff.; Beem, Jack D., “Non-Recognition: A Reconsideration,” 22 University of Chicago Law Review 261, 277 (1954).Google Scholar

²³ See note 5 supra.

²⁴ Quoted in Wright, , “Some Thoughts about Recognition,” 44 A.J.I.L. 549 (1950)Google Scholar; see also United Nations Year Book (1950) 424 ff.

²⁵ Note 4 supra.

²⁶ Art. IV, 47 A.J.I.L. Supp. 204 (1953).

²⁷ Lauterpacht, Recognition 375 ff.

²⁸ Jenkins, loc. cit. supra note 3.

²⁹ 1 United Nations Review 2 (February, 1955).

³⁰ Ibid. 5 (March, 1955). The resolution introduced by New Zealand was unanimously approved except for the negative vote of China and the abstention of the Soviet Union.

³¹ Following this refusal, the Soviet Union proposed exclusion of the “Kuomintang representative” of China, but the Council approved unanimously, with exception of the Soviet Union, a United States resolution not to consider a change of Chinese representation at this time. The British representative, supported by the French representative, said the question of China’s representation in the United Nations would have to be settled before peaceful and friendly relations could be re-established between the various governments with interests in the Far East, but discussion of the question in the United Nations would do “more harm than good” while the views of Members “are evidently so deeply divided on this issue.” His support of the United States resolution did not mean that the question should never be considered but that “the existing circumstances were not propitious.” (Ibid. 6).

³² War or Peace (New York, Macmillan, 1950) 190. In hearings before the Wiley Committee on Beview of the United Nations Charter, in January, 1954, Secretary of State Dulles expressed the opinion that the Nationalist Government “represented the true aspirations and hopes of the Chinese people.” 83rd Cong., 2nd Sess., Hearings, Pt. I, at 20. After detailed study of the question of Chinese representation in the United Nations, Herbert W. Briggs concluded in May, 1952: “When peace is reestablished in Korea, it may be easier to recognize that neither the long range interests of the United Nations nor the interests of a member containing perhaps one-fifth, of the world’s population, can be served by disregarding the unpalatable fact that the only government in effective control of China is the Chinese Communist government.” 6 International Organization 209 (1952). Conceding, in October, 1953, that the time may be approaching when “expediency” will suggest the recognition of the Communist government, Charles G. Fenwick urged that “the test of international law” be also considered�whether the “will of the people” of China has been “substantially declared” in favor of that government, and whether that government is prepared to observe international law. “The Recognition of the Communist Government of China,” 47 A.J.I.L. 666 (1953)Google Scholar. Quoting President Eisenhower’s assertion in his state of the Union message (January, 1955), that the issue in the cold war is “the true nature of man,” Gray L. Dorsey suggests that Communism repudiates the concept of man assumed by international law on the basis of Western philosophy, and consequently “a Communist controlled society is not a state under international law and should not be recognized.” “The State, Communism, and International Law,” Washington University Law Quarterly (February 1955) 1 ff. The opinions of Briggs, Fenwick and Dorsey appear successively to illustrate a more subjective and abstract interpretation of the state. Such an interpretation departs from the objective and concrete conception of the state which emerged after the Peace of Westphalia and which has distinguished modern international law from the natural law of the Middle Ages. The tendency of modern international law to subordinate ideological differences to territorial sovereignty has, however, been influenced by the principles of democratic liberalism, accepted by the United Nations Charter, tending to subordinate territorial sovereignty to human rights. It would appear that international law is in need of a universally acceptable “public philosophy” or “natural law” reconciling the rights of man and the rights of nations. Wright, Q., “International Law and Ideologies,” 48 A.J.I.L. 619 (1954)Google Scholar. See also Lippmann, Walter, The Public Philosophy (Boston, Little, Brown, 1955)Google Scholar; Kallen, Horace M., Secularism is the Will of God (New York, Twayne, 1954).Google Scholar

³³ Art. II, 46 A.J.I.L. Supp. 72 (1952). The treaty went into force April 28, 1952. Japan made a separate treaty with Chiang’s China, also renouncing Formosa and the Pescadores, in force August 5, 1952.

³⁴ Sen. Exec. A, 84th Cong., 1st Sess. (1955) ; 31 Dept. of State Bulletin 899 (1954); in force March 3, 1955.

³⁵ 32 Ibid. 152 (1955).

³⁶ 31 Ibid. 896 (1954).

³⁷ Arts. 1(2), 55, 73 (b), 76 (b).

³⁸ According to Art. 103 of the Charter.

³⁹ Prime Minister Winston S. Churchill expressed the opinion in the House of Commons on Feb. 1, 1955, that neither the Cairo Declaration nor the Peace Treaty with Japan had operated to make Formosa and the Pescadores formally part of China (Dean, loc. cit. supra note 1. at 572).

⁴⁰ 1 Moore, Digest of International Law 120.

⁴¹ Ibid. at 121.

⁴² See Lauterpacht, Recognition at 11, 18 ff., 93 ff., 124 ff., 416 ff.

⁴³ Wright, Q., The Control of American Foreign Relations (New York, Macmillan, 1922) 13–20.Google Scholar

⁴⁴ 28 Dept. of State Bulletin 599 (1953).

⁴⁵ 1 Moore, Digest 250.

⁴⁶ Lauterpacht, Letter to the London Times, Jan. 6, 1950, note 9 supra.

⁴⁷ Moore, op. cit. at 243; Wright, Control of American Foreign Relations 268 ff.

⁴⁸ Reciting the strategic importance of Formosa and the Pescadores, this resolution authorizes the President to use the armed forces to protect them “against armed attack, this authority to include the securing and protection of such related positions and territories of that area not in friendly hands and the taking of such other measures as he judges to be required or appropriate in assuring the defense of Formosa and the Pescadores.” 32 Dept. of State Bulletin 213 (1955). In an address of Feb. 16, 1955, Secretary of State Dulles said “it is doubtful” whether evacuation of the coastal islands “would serve the cause of peace or the cause of freedom,” adding: “The United States has no commitment and no purpose to defend the coastal positions as such. The basic purpose is to assure that Formosa and the Pescadores will not be forcibly taken over by the Chinese Communists.” He noted “the strategic linkage of the coastal islands with an attack on Formosa by the Communists,” and expressed the hope that even though they’maintained their claim to Formosa they might renounce the use of force to achieve it. Ibid. at 329 ff.

⁴⁹ Corwin, Edward S., The President’s Control of Foreign Relations (Princeton, University Press, 1917) 35–82;Google Scholar Wright, Control of American Foreign Relations 21–37, 270–273, 278–283; 1 Moore, Digest 243–248; 1 Hackworth, Digest of International Law 161–166, 313–318; 4 Ibid. 642–652; 5 Ibid. 27–29.

⁵⁰ Arthur Dean suggests that even if Communist China is generally recognized, the “Republie of China” on Formosa might be considered the Government of China with title to bank accounts, buildings, and other property of “China” abroad; to the right to protect Chinese nationals abroad; and to China’s seat in the Security Council (loc. cit. supra note 1, at 373). With due respect, the present writer would suggest that there are limits to jural fletions. Ex factis jus oritur. The tail is not the dog. The government of Formosa is not the government of China. While Chinese abroad might, if two Chinese governments are recognized, elect for the nationality of either “Formosa China” or “mainland China"; and while accommodations might be made in respect to properties abroad acquired in the name of Chiang’s “Republie of China,” only the government which controlled “mainland China” could represent China in the United Nations or other international institutions, or claim title to public property of China abroad not specifically related to Formosa or to Chiang’s government. If there are to be “two Chinas,” Chinese Formosa would be the new state and the Chinese mainland the old state of China. China was given a permanent seat in the Security Council because it was a state of vast territory, population and potential power. A state of Formosa would have no such claim. During the Bandung Conference Communist China signed a treaty with Indonesia (April 22, 1955) giving Chinese in Indonesia an option to choose Chinese or Indonesian nationality. 24 Far Eastern Survey 75 (May, 1955).

⁵¹ The northern islands–Tachen, Yikiang and Yushan–were evacuated by Nationalist forces in February, 1955, with United States assistance. See address of Adlai E. Stevenson, April 11, 1955, and comments on it by Secretary of State Dulles, April 12, 1955, New York Times, April 12, 13, 1955.