In that connection I enclose the statement that I read to the Conference
on August 16th, discussing recognition of the new Paraguayan
government.
It will be noted that I stated that I had not consulted with my
government and merely presented the matter for discussion.
[Enclosure]
Statement Made by the American Delegate
(Braden) at Conference
Session, August 16, 1937
I wish to lay before the Conference, a question for discussion:
Provisional President Paiva, I understand, today in a press
interview, declared the new government’s intention to respect
Paraguay’s international obligations and to live in amity with its
neighbors. This and other information to hand indicates that
recognition may shortly be advisable. In this connection, I would
recall to my distinguished colleagues that repeatedly, both the
delegation headed by Dr. Ramirez15 and the opposition leaders, such as Dr.
Zubizarreta,16 have contended that no treaty—especially on
the fundamental question—would be legal in the absence of
ratification by a properly elected legislature. They have even gone
so far as to claim that the direct negotiations could not be carried
forward exhaustively until a constitutional government was in
office. It is this problem which I feel the mediators should
carefully consider. If you will bear with me, I first would like to
present certain generalizations:—
Quaere: Can the government of a country which
is illegal according to its own constitution, be bound by
international agreements entered into by it? Will subsequent
governments of the same country be bound by those agreements?
These two questions are answered by the following:
“It is a sound general principle, and one to be laid down at
the threshold of the science of which we are treating, that
international law has no concern with the
form, character, or power of the constitution or
government of a state, with the religion of its
inhabitants, the extent of its domain, or the importance of
its position and influence in the commonwealth of nations.”
(Italics mine.) (Phillimore, Int. Law, 3rd Ed. I, 81 quoted
in Moore, Dig. I, 15).
Thus, if a government declares itself to be competent to enter into
diplomatic relations and to perform international acts and this
faculty has been formally recognized to it, the question of the
legality or
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illegality of
the government itself is not of international concern. In other
words, if a government considers itself competent to appoint
ministers and other official spokesmen, and these ministers and
spokesmen are accepted and recognized, that same government cannot
plead incompetence to sign a binding agreement.
President [Secretary of State] Jefferson, in
an instruction to Governor [Gouverneur]
Morris on March 12, 1793, laid down that the United States “surely
cannot deny to any nation that right whereon our own government is
founded—that everyone 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
will of the nation is the only thing essential to be regarded.”17
The United States has, upon occasion, refused to admit that a
government claiming to represent the will of the nation represented
it in fact. Recognition was then withheld. Such action does not
appear likely in the case of the new government. On the contrary,
all information, so far received, indicates that the Paiva
government is competent to enter into international commitments and
may shortly be recognized.
Paraguay is an independent sovereign state. Its new government will
have come into power, (according to the published statement of
Colonel Paredes, leader in the recent movement and Chief of the
army) through the revolution on February 17, 1936, followed by the
one on August 13, 1937. The new Paraguayan government, if
recognized, will enjoy all the attributes of a sovereign state and
these will have been expressly recognized by the mediatory powers,
including the United States, as well as by other sovereign
nations.
The new Paraguayan government will possess five qualifications as
essential for a state in international law:
- 1)
- A people sufficient in number to maintain and perpetuate
itself.
- 2)
- A fixed territory occupied by the inhabitants (the
territory in litigation does not affect the other boundaries
which are fixed).
- 3)
- An organized government “expressive of the sovereign will
within the territory, and exercising in fact supremacy
therein”.
- 4)
- The possession and use of the right to enter into foreign
relations will have been recognized to it.
- 5)
- The inhabitants are recognized as having attained that
degree of civilization which enables them “to observe, with
respect to the outside world, those principles of law which
by common assent govern the members of international society
in their relations with each other”.
To summarize, recognition by my government will, I believe, be based
upon the power of the new government: (a) To
maintain internal
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order,
i. e. police and taxing power. (b) To carry
out the country’s international obligations.
It should be kept in mind, as an accepted principle of international
law, that recognition of a state is a privilege and not a right.
This Conference and the mediatory powers here represented have a
peculiar interest and special responsibilities in the question of
recognition: (1) For us and for the parties, the protocols are
fundamental. The fullfilment and completion of the provisions of
those two documents, self-evidently require the enactment of
additional agreements; these are, in fact, contemplated in the
protocols. Therefore, it might even be alleged that these additional
agreements implicitly were authorized by the Bolivian and Paraguayan
Congresses when they ratified the protocols. (2) Request for
recognition is, in effect, the new government’s declaration that it
is competent to enter into binding international agreements. (3) By
granting recognition we acknowledge that government’s competence.
Hence the new government cannot capriciously refuse to enter into
the direct negotiations nor to sign a treaty which will settle the
territorial-boundary differences or provide for arbitration of that
question; especially is this true when such a treaty is foreseen in
existing international commitments, i. e. in Paraguay’s case: the
Protocols.
Therefore, although I have not consulted on the matter with my
government, in the cause of peace, and in order to avoid future
obstacles being placed in our path, to comply with our
responsibilities as mediators, and in short, to insure the success
of our undertaking, I submit for the consideration of my fellow
delegates that if, as now appears likely, we decide that the new
Paraguayan government should be recognized, that we then adopt the
procedure followed in the two recognitions according during 1936,
that is to say, each of the mediatory powers, more or less
simultaneously, present similar notes to the new government, and
that in these notes there be included a phrasing which will
condition our recognition not only on the new government’s declared
intention of respecting its international obligations but also upon
the new government’s recognizing itself to be competent to carry out
its obligations, to enter direct negotiations, and to fullfill the
provisions of the Protocols by entering into other binding
agreements. Nothing in this procedure would prevent a subsequent
ratification of the new agreements by a congress, when elected, if
either one or both of the parties so desired.
Mr. President, I have not made the foregoing statement as a
declaration of policy. I am not proposing a thesis but simply place
the matter before the Conference in the belief that advantage may be
taken of the situation so to phrase our respective notes of
recognition
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as to forward
the attainment of our objectives. Needless to say, the injection of
this delicate subject into our notes of recognition must be done
skillfully and carefully.
