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A Conceptual History of Recognition in British International Legal Thought

A Conceptual History of Recognition in British International Legal Thought Abstract This article examines the development of the concept of recognition in the writings of British jurists. It first outlines methodologies of conceptual history as applied to international legal concepts, before examining four strands of development of the concept of recognition from the mid-nineteenth to mid-twentieth centuries. It shows how the concept of recognition moved from examining intra-European diplomatic disagreements, to a focus on Christianity, civilisation and progress that barred non-European communities, to a late colonial-era emphasis on technicalities of government and territory, and eventually a state-centric account that normalised inferiority into difference, before emerging in the interwar period as a ‘basic concept’ of international law: intensely debated and closely tied to a range of political projects. The article concludes with reflections on why British thinking turns away from recognition in the 1950s, as the decolonising world turns to a new international law and self-determination. I. Introduction A. Recognition and its contexts In contemporary international law doctrine and teaching, recognition is explained by series of syllogisms, a doctrinal debate, and a set of now-familiar case studies and examples.1 In its syllogistic form, recognition is the act whereby State A announces its official position about rights, obligations, status or capacity in general under international law, most commonly in relation to a state or government. In the case of recognition of states, State A recognises State B where State A announces that it officially recognises State B’s existence as a state. The practical effects of recognition are numerous: that State A will deal with legitimate representatives of State B to the exclusion of other claimants to that mantle; that cases decided by State B’s courts will be recognised as legitimate foreign judicial determinations in State A’s courts; and so on. As a question of theory, the central dilemma of recognition is its relationship with law: ‘Is recognition a question of law or diplomatic policy? What law, if any, governs the decision to grant or withhold recognition?’ It is often suggested that the ‘declaratory’ and ‘constitutive’ schools of thought offer competing answers to these questions.2 For the declarativist, State A’s recognition of State B is a declaration that confirms State B’s existence. It is State B’s fulfilment of the criteria of statehood (whatever they might be) which makes it a state, not an official pronouncement by other members of the international community. This is the dominant theoretical understanding today.3 For the constitutivist, the recognition of State B—by both State A and other current members of the international community—is necessary for its legal existence as a state. Recognition does not just declare existing facts. It is the action which constitutes and creates State B’s statehood and membership of the international community. Illustrations of recognition are found in the statements of governments, the establishment of embassies, the signing of treaties, decisions of domestic and international courts and tribunals on questions of recognition, and declarations of the UN General Assembly on a polity’s membership status. Finally, ‘exceptional’, ‘anomalous’ or ‘special’ cases of statelets, quasi-sovereigns and semi-dependent entities are raised to challenge and complicate these otherwise seemingly straightforward principles. The histories, lives and worlds that shaped the development of competing ideas of recognition and their incidents are today firmly compressed. But the syllogisms were not always in these forms, the illustrations not always encapsulations, and declarativism and constitutivism not always the labels. Like all legal ideas, the concept of recognition has an important contextual background, and one which is easily forgotten or flattened in the focus on the logics of doctrine. That history is especially important because recognition involves a difficult blend of political decisions and legal arguments. That blending provides one story in the immensely complicated history of changes in forms of political organisation, and interaction between political communities, in the modern world. Within the broader history of international law, periods of upheaval and transition have always involved transformations in the entities that comprise the international order. The problem of transformation, today termed ‘recognition’, has always remained the same: how does an entity become part of the community beyond it, and who decides the criteria and judges its application? In moving beyond general histories of recognition as a diplomatic problem4 or accounts of its development within international institutions and various courts and tribunals,5 this article presents a new perspective on the development of recognition. This history is built from the juristic works of British international lawyers. It tracks the conceptual changes between their works, places those shifts within their contexts, and shows how the political projects of jurists and states were woven into the purportedly ‘logical’ analytic propositions of recognition doctrines. Understanding the origins of recognition is important and urgent because that history is not a gradual, scholarly clarification of neutral criteria of statehood, or a simple description of diplomatic interactions and the reception of new states into an unblemished family of nations. This history shows how recognition was used to establish hierarchies of political communities, facilitating the exploitation of those placed at the bottom by those who placed themselves at the top. Nowhere is this plainer than in the writings of British jurists shaping and reacting to the rise and fall of the British Empire. The study thus contributes to the ongoing project of understanding the complicated and often problematic foundations of modern international law. B. Conceptual histories of international law This article’s second, methodological contribution is to take up a conceptual history frame.6 Conceptual history examines the changing meanings, uses and contexts that shape the development of concepts, with a focus on their role in political and ideological debates within societies. Although ways of treating ideas, thought, philosophy, disciplines or intellectuals historically might be fairly termed ‘conceptual history’, today that specific formulation is most often directly associated with the historical theories of Reinhart Koselleck.7 This article is guided by a Koselleckian mode of conceptual history. While a clear theory of this mode of historical work may be difficult if not impossible to articulate,8 several themes and methods can be discerned.9 It seeks to establish when an ordinary concept develops and emerges as a ‘basic concept’. For Koselleck, concepts do not hold singular, unambiguous and clear meanings. Rather they hold multiple, controversial, contested meanings and connotations that accumulate as people use them to articulate or further political or social projects and ideals. When a concept becomes an ‘inescapable, irreplaceable part of the political and social vocabulary’ it may crystallise into a single term (‘revolution’, ‘democracy’), and become a basic concept: simultaneously fluid, complex, controversial and contested in its usage by a range of political and social actors.10 A working definition of this difficult idea of ‘basic concept’ is an essentially contested and debated idea that is indispensable for the thought, articulations and actions underlying a wide spectrum of political projects within a particular national community. Conceptual histories aim to trace this transition to ‘basicness’ by examining when, how and why particular strands of meaning are added to, persist in, or are discarded from a concept. To do so, they focus on language and context, examining which meanings remain stable in or across time, which meanings are chosen or promoted over time, and what contexts might explain these choices. The archive to which these methods are applied begins with the works of ‘representative authors’: the ‘classical’ texts of major philosophers, theologians, poets, legal and political theorists that use and debate the concepts examined. Scrutinising these major works reveals what Koselleck calls the ‘semantic fields’ of a concept: the conditions of possibility about what can be said, argued, understood and done at a particular time with that concept. Wider discussions in newspapers, periodicals, pamphlets, parliamentary debates, government sources, diaries, letters, and potentially dictionaries and encyclopedias, can be used to explore the limits of these fields. Importantly, conceptual histories focus on single national-linguistic traditions and communities: the meanings, histories, connotations and modes of communicating a concept are likely to be specific to say, England, France or Germany, even where terms appear similar or translatable on their face.11 The political, social and intellectual context of a period is not just a background to conce