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Britain’s recognition of the Spanish American republics


The gap between theory and practice in international law (1810–1900)


In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review
Author:
Inge Van Hulle PhD Project Researcher FWO-Vlaanderen, KU Leuven, Research Unit Roman law and legal history, Sint-Michielsstraat 6, B-3000 Leuven
 inge.vanhulle@law.kuleuven.be


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This paper seeks to illustrate the major role, which the introduction by Britain of three types of recognition, i.e. de facto, diplomatic and de iure recognition has played in the development of the modern declaratory and constitutive theories of recognition. Through an analysis of historical context, state practice and theories of the nineteenth-century doctrine of recognition, this paper shows that, while the development by Britain of its specific concept of recognition was inspired by Realpolitik, and less by legal considerations as to what the exact function of recognition by third states was, the use of the concept of recognition in the case of Spanish America was increasingly appropriated into a positivist and constitutive approach.


1 Introduction: the demystification of the doctrine of recognition


Writing in 1986 on the theory of recognition of states in international law, Ian Brownlie complained that ‘there is no doubt room for a whole treatise on the harm caused to the business of legal investigation by theory’ 1 . In the particular case of recognition, the harmful theories Brownlie was referring to are the declaratory and constitutive theories about the function of recognition by third states that have divided legal scholarship for decades. Adherents of the declaratory theory argue that recognition by third states means merely the acknowledgement of independence of a new state 2 . Once the conditions of statehood are satisfied, the new state comes into being, without the necessity of its prior recognition. The constitutive theory starts from the fundamental positivist premise that international law is based on the consent of nations 3 . Therefore, without prior recognition by third states, new entities cannot achieve statehood.


Neither theory is entirely free from objection 4 . The constitutive theory seems to suggest a discretionary power for third states to bring new states into existence, which may lead to the undesirable hypothesis that an entity might simultaneously be a state to some and a non-state to others. The declaratory theory takes away the discretionary power of the state and replaces it with a duty to recognize the new state once the conditions of statehood are fulfilled. However, identifying these conditions of statehood has proved to be a challenging task 5 .


Moreover, both theories have wider implications for international law 6 . The constitutive theory portrays the state as the supreme origin of international rights and duties, whereas the declaratory theory suggests that states are subjected to previously determined international rules. Most handbooks of international law posit the constitutive and declaratory theories of recognition in their above-mentioned extreme forms 7 . However, it is best to view them as two opposites on a sliding scale, where many legal scholars have taken a middle ground 8 .


Debates between legal scholars on the flaws of both theories and on attempts to reconcile them have pushed the analysis of actual state practice with respect to recognition somewhat to the background. The same can be said when it comes to the historical analysis of the doctrine of recognition of newly independent states. Recognition only became a separate subject within the doctrine of the law of nations towards the end of the eighteenth century 9 . So far, little attention has been paid to recognition by historians of international law.


Some headway has been made by legal historians examining the relationship between international law and empire 10 . They have predominantly focused on the period of the late nineteenth-century when international legal doctrine was firmly embedded within exclusionist and imperialist paradigms. At the time, the doctrine of recognition in its constitutive form was used by positivist lawyers for the exclusion of non-European states from the scope of international law. As recognition by European states was a pre-condition for the attainment of international legal personality, which could only be obtained when the ‘standard of civilisation’ was fulfilled, unrecognized non-European states were thus unable to acquire the rights and duties normally awarded to subjects of international law 11 .


The period prior to 1870 has received less attention from legal historians 12 . Furthermore, academic focus lies predominantly on historical theoretical debates of recognition 13 . Indeed, while the historical turn in the study of international legal theory has begun, it is still wanting with respect to state practice 14 . This is remarkable as legal scholars seem to agree that recognition is one of the fields of international law that is traditionally closely connected with politics 15 . Only very recently have attempts been made by international relations theorists to broaden the scope from theory to historical state practice of recognition 16 .


This academic neglect of state practice with respect to the doctrine of recognition is a shame, as the question remains whether theories of international law can ever really be understood without an analysis of the state practice that lies at their roots. Equally should contextual factors play an essential role in such an analysis, as state practice is also determined by socio-economic and political issues that guide the legal decision-making process of states. Again, a contextual analysis of state practice is hard to come by in the history of international law 17 . This is regrettable, as it might aid the much-needed ‘demystification’ of the doctrine of recognition in providing clues as to how state practice of recognition was interpreted or, even, misinterpreted by legal scholars.


This article aims to bridge the gap between theory and practice by means of the analysis of the case-study of the recognition by Britain of the first Spanish American 18 states in 1825 and, more particularly, on the role that its state practice has played in the development of the doctrine of the function of recognition by third states 19 . In doing so, it uses a three-pronged approach that includes the study of the nineteenth-century political context, state practice and theory. Therefore, this article first provides a brief historical overview of the diplomatic and political process that led Britain to recognition, providing an insight into why Britain decided to recognize the Spanish American states. Next, the British concept of de facto, diplomatic and de iure recognition are explained, along with an analysis of the legal and political considerations that prompted Britain to develop its specific concepts of recognition. In a final section, the reception of Britain’s state practice with respect to the recognition of the Spanish American states by legal scholars of the middle and late nineteenth-century is scrutinized.


This article argues that the theoretical development by Britain of three types of recognition, i.e. de facto, diplomatic and de iure recognition was ­inspired, first and foremost, by reasons of Realpolitik, and less by considerations of whether recognition had a declaratory or a constitutive function 20 . Nevertheless, British state practice with regard to the recognition of Spanish America had a major influence on legal scholars of international law and, therefore also on the development of the constitutive and declaratory concepts of recognition.


2 The political context: the road to recognition


Britain’s decision to recognize the Spanish American republics cannot be viewed in isolation. It was determined by domestic factors as well as by geopolitical considerations. These factors not only directed Britain towards recognition, hereby precluding the choice of other international legal instruments, but they also fixed the specific form and the conditions under which recognition took place. Recognition of the Spanish American colonies was by no means Britain’s first choice when the colonies’ struggle for independence commenced. It was rather the outcome of a gradual process, consisting of two distinct phases. The first phase lasted from 1810 to September 1822 and was mainly dominated by Lord Castlereagh, Britain’s Foreign Secretary (1769–1822). The second phase, lasting from September 1822 until August 1825 was influenced predominantly by Castlereagh’s successor, George Canning (1770–1827).


While Castlereagh did not look unfavourably on the Spanish American struggle for independence, there were various policy objectives that convinced him of the fact that mediation – and not recognition – between Spain and its colonies was, at that time, the most attractive option for Britain. Firstly, there was the issue of commerce. Britain had a long history of commercial interaction with the former colonies. The Spanish American insurrection therefore opened up further commercial opportunities and perhaps even the abolishment of the much-resented Spanish trade monopoly 21 . Secondly, the outbreak of the Peninsular War in 1808 cleared the way for Britain to negotiate favourable trade conditions from Spain with its Spanish American colonies 22 . However, Spain’s continued war effort was needed to repel Napoleon’s forces from the Peninsula 23 . Therefore, the Allied powers could not afford Spain to be distracted by insurgent uprisings across the Atlantic. Not only was Spain’s army needed, but the precious bullion of her colonies too, as Castlereagh warned: ‘the means of carrying on the war in Europe against France depend on their fidelity. If separated, the wealth of America is withdrawn from the cause in Europe; if united and tranquillized, its treasures may again be poured forth in our support’ 24 .


So Castlereagh needed to tread carefully in an effort to keep both Spain and the insurgent colonies sufficiently happy. The best way to achieve this was for a mediation to be conducted with the aim of keeping the colonies tied to the mother country, while also accommodating some of the wishes of the insurgents. However, differing views on the commercial status of the colonies and on the number of colonies to be included in the arrangement, combined with Britain’s refusal to use force, proved fatal for Spain and Britain to come to an agreement with respect to the terms of the mediation.


While the strategy of mediation was not yet abandoned, several factors prompted Castlereagh to look for another international legal instrument, such as recognition. One reason was Spain’s attempt to actively seek the help of France and Russia for a forcible intervention in Spanish America 25 . Furthermore, across the Atlantic, the discussions between the allied powers had demonstrated to the United States that Europe was a divided front, which provided them with the opportunity to be the first state to recognize the Spanish American colonies in 1821 26 . However, it was France’s plan to install a Bourbon monarchy in the new Spanish American states and the possibility of a European power interfering with the liberal revolution in Spain itself that eventually convinced Castlereagh to take the first steps towards recognition 27 . Such a recognition would preclude France and Russia from gaining a foothold in South America, a potential disturbance of the European balance of power. The international prestige of being the first European state to recognize the new republics and the gratitude of the Spanish American states, which perhaps could be translated in commercial concessions, also played a crucial role. However, quite unexpectedly, on 12 August 1822, Castlereagh committed suicide. Yet before he did so, he had carved out a policy that would lead Britain towards the recognition of the Spanish American states.


It would fall upon the shoulders of George Canning – Castlereagh’s successor as Foreign Secretary – to take the final steps towards recognition. While Canning was in office, the international state of affairs had not changed to the extent that recognition had become unattractive. If anything, it had become more urgent. The protracted struggle between Spain and its colonies had given rise to an increase of piracy, which had made it unsafe for British merchants to ship their goods across the Atlantic. The commercial lobby in London therefore pressed for recognition in the form of commercial treaties 28 . On top of that, France invaded Spain in 1823 to restore king Ferdinand VII to power 29 . Combined with the US declaration of the Monroe Doctrine in December 1823, this raised the stakes for recognition considerably as fears of the possibility of the Spanish American states coming under French influence were renewed 30 . Despite the French threat and the mounting commercial domestic pressure in favour of recognition, it was not until 1825 that the first Spanish American state, Buenos Aires, was recognized by Britain. The delay Canning encountered was mainly caused by suspicion harbored by conservative forces within the British government towards the new plebeian-born Foreign Secretary 31 . Finally, on 2 February 1825, a treaty was concluded with the United Provinces of Rio de la Plata, soon followed by Mexico and Columbia.


3 Britain’s state practice with respect to the recognition of Spanish America


3.1 De facto, diplomatic and de iure recognition


Before the middle of the eighteenth century, recognition by third states attracted very little attention from commentators on the law of nations. Crawford ascribes this to the prevailing idea among early modern writers that sovereignty came from within the state. This implied that new states did not require the consent of third rulers or states as all depended on dynastic legitimacy and, therefore, recognition was considered redundant 32 . The topic directly related to recognition that attracted more attention was whether rebellion against a rightful sovereign was legitimate according to the law of nations. From the eighteenth century onwards, this included discussions on the recognition of elective rulers within the law of nations 33 .


After the middle of the eighteenth century, when commentators started to discuss recognition of newly independent states, the prevailing opinion among them was that recognition was a matter of policy and that it therefore belonged to the realm of politics 34 . Most writers, such as Klüber, continued to view recognition as unnecessary and superfluous for the new state to become independent: ‘La souveraineté est acquise par un état, ou lors de sa fondation, ou lorsqu’il se dégage légitimement de la dépendance dans laquelle elle se trouvait. Pour être valide, elle n’a pas besoin d’être reconnue ou garantie par une puissance étrangère quelconque pourvu que la possession ne soit point vicieuse’ 35 . Recognition, for Klüber, was only to take place for the sake of political convenience 36 . Only when third states recognized a new state while the sovereignty of the mother country had not been completely repelled or when the struggle between the mother country and the rebel forces was not yet over, was it considered by early positivist writers as a problem according to the law of nations 37 . It was then considered a form of illegal intervention by the third state in the sovereign rights of the mother country 38 .


Despite the works of the above-mentioned writers, it is safe to say that in the 1820’s the doctrine of recognition was still in its infancy. Apart from a number of general principles, it was not clear which actions amounted to recognition or which specific conditions had to be fulfilled before recognition could take place. In a seminal memorandum, written just days before his death, Castle­reagh outlined his understanding of what recognition entailed 39 . This memorandum would become the starting-point and the basis of the entire British concept of recognition by third states. Castlereagh conceded that recognition of the Spanish American colonies was fast becoming ‘a matter of time rather than of principle’ 40 .


It is clear from the words of the memorandum that Castlereagh was taking the legal discussions concerning the independence of Britain’s North American colonies of 1779 into account 41 , as one of the conditions for recognition needed to be the termination of the conflict between Spain and its colonies. To that end he made a distinction between the various insurgent states and indicated for each of them the intensity of the armed struggle and the level of recognition that could accordingly be afforded. Firstly, he distinguished between those states ‘in which the contest still subsists’. Secondly, he drew a line between ‘the territories in which the struggle may be said to be over, and the possession complete on the part of the local governments’ and, finally, between the states ‘in actual or intended negotiation with Old Spain’. When it came to the first category of states, ‘there can be no justifiable ground for Recognition’. Only with respect to the second category, namely the states where the struggle had been terminated, could recognition be considered.


With respect to the decision of recognition itself, the discussion ‘resolves itself into one rather as to the mode of our relations than as to whether they shall or shall not subsist to the extent, in matter of right, as regulated by the Law of Nations’. In other words, Britain’s recognition entailed no judgment on whether or not the new states fulfilled the conditions of statehood. Its function was therefore merely declaratory. According to Castlereagh, the different ‘modes of relations’ that Britain was to have with the various insurgent states were: firstly ‘the Recognition, de facto, which now substantially subsists’; secondly, ‘the more formal Recognition by diplomatick agents’; and thirdly, the ‘Recognition, de jure, which professes to decide upon the title and thereby to create a certain impediment to the assertion of the rights of the former occupant’. Britain could only engage itself with the two first modes of recognition, as the third mode was ‘for the contending parties themselves’ to decide and ‘not for third parties to interfere’. In other words, de iure recognition was something to be considered by the mother country, whereas de facto and diplomatic recognition were issues to be decided by third states.


The distinction between de facto and de iure recognition had already been put forward in an embryonic form by the United States, yet it would be more intricately developed by Britain 42 . In fact, it could be argued that the greatest novelty in the idea put forward by Castlereagh was not so much the distinction between de facto and de iure recognition, but the insertion of a third category, namely diplomatic recognition. Indeed, diplomatic recognition was something different and – seemingly – something more than de facto recognition while, at the same time, not quite amounting to de iure recognition.


While it is George Canning who is generally accredited carving out the distinction between de facto and de iure recognition, he in fact did nothing more than implementing the policy that Castlereagh had designed. Castlereagh’s September memorandum became the basis of the negotiations that the Duke of Wellington was to conduct at the Congress of Verona 43 . It is probably more accurate to acknowledge Canning’s contribution to the further delineation of the boundaries between de facto and diplomatic recognition. Neither of the categories of recognition outlined in the September memorandum had been clearly defined by Castlereagh. In fact, the language of the memorandum shows that Castlereagh himself was unsure as to how Britain was to proceed, as he rightly asked himself: ‘How long should the de facto system of recognition be maintained, to the exclusion of the diplomatic, and when should the latter be adopted?’. Perhaps aware of the isolated position Britain would hold in ­Europe when becoming the first nation to recognize the Spanish American states, his first proposition was to discuss it with the other allies for ‘the adoption of common sentiments’, while at the same time not binding Britain to any concrete outcome.


When it came to de facto recognition, Canning could build on the groundwork his predecessor had laid. For Castlereagh de facto recognition had entailed commercial recognition. To this effect, the Navigation Laws had been amended to allow the ships of the Spanish American states into British ports. He had also prepared for the sending of commercial agents to the new states in order to protect the interests of British merchants. Canning would bring this process to completion in December 1822 when he sent word to the British envoy, Sir William A’Court, to prepare for the sending of commercial agents with consular powers to the Spanish colonies 44 . It was evident that he did not view this as a form of diplomatic recognition, as he sent a request to the Advocate General, Chris Robinson, to advise him on the nature and the terms in which the consular commission could be established, but ‘bearing in mind, that the terms of the commission should not go to the full length of an actual recognition (…)’ 45 . Robinson therefore omitted in the draft commission any reference to territorial limits and dominion. It is clear that for Canning the boundary between de facto and diplomatic recognition lay at the sending and receiving of individuals in official governmental capacity, as this would amount to ‘a direct recognition of (…) public character’ 46 .


It may therefore be concluded that both Castlereagh and Canning perceived diplomatic recognition as something different than a mere de facto recognition. The latter type ended where individuals in official state capacity were exchanged and treaties were concluded. However, both de facto and diplomatic recognition were styled as being of a political and therefore, essentially, a declaratory nature. They were labeled as distinct from de iure recognition, the only type of recognition that fell within the scope of the law of nations and that was reserved for Spain, the mother country. Interestingly, a consequence of the prejudice against Canning’s humble background was that Canning had to justify recognition to the other continental powers and to the British cabinet more conspicuously and in greater measure than Castlereagh probably would have had to do. As will be shown, despite the fact that Canning insisted on Britain’s recognition being of a purely political dimension, he nevertheless attached a number of legal consequences to the newly created category of diplomatic recognition, which was a departure from what the early writers on recognition had said.


3.2 Recognition is not intervention


3.2.1 The specter of the North American colonies


Where did the three types of recognition come from and why were they de­veloped in their distinct form? Two major legal and political developments played a definitive role in the shaping of the British doctrine of recognition. Both developments had roughly the same consequences: they urged Britain to emphasize to the European powers and to the conservative political class at home that recognition was not an intervention on the side of the rebellious colonies. It needed to be maintained that Spain’s sovereign rights were not infringed and that the function of recognition was merely political or, in modern terms, declaratory.


The first development was the impact on the British legal mindset of its experience with the secession of the North American colonies. More than any other state, Britain needed to convince the world that its recognition of the Spanish American states was justified according to international law. The main reason for this was the British accusation of premature recognition of its North American colonies by France fifty years earlier. Indeed, the specter of the ex-colonies had been hovering over Britain since the start of its attempted mediation. It was on the basis of the experience with insurgent territories that Castlereagh and Canning claimed the moral authority to negotiate between Spain and its American provinces as the ‘concern of England with all Colonial questions’ was more extended and immediate ‘than that of any other power in Europe’ 47 . As the decision to recognize came closer, it became important to emphasize why the situation of the Spanish American colonies was different from that of the North American ones and why, therefore, Britain could pursue a policy of recognition.


When on 4 July 1776, the North American colonies declared their independence, France commenced a series of secret negotiations with the rebel government, culminating on 6 February 1778 in the conclusion of two treaties of alliance and of friendship and commerce, amounting to recognition. The British response was a declaration of war against France, while in the background a legal discussion ensued between France and Britain in which Britain attacked the French legal justifications for recognition 48 . Firstly, Britain argued, France had, by her secret negotiations with the rebels, disturbed its peaceful relationship with Britain, which was enshrined in the treaty of Paris of 1763 signed at the conclusion of the Seven Years War 49 . Secondly, France had also violated its duties as a neutral state, as the French negotiators had not only shipped various arms and supplies to the colonies, but had also afforded them the protection and the favour of the court of Versailles 50 . Thirdly, to the French argument that the battle had already been decided in favour of the rebels, Britain replied that its royal army was still in possession of major maritime strongholds 51 . Finally, Britain insisted that France had violated the sovereign rights of Britain as the conflict had been a domestic one between Britain and its lawful subjects, which meant that its recognition had been an illegal intervention. If France’s recognition of the North American colonies was left unpunished, it implied the introduction ‘dans la jurisprudence de l’Europe des maximes aussi nouvelles qu’elles seraient fausses et dangereuses’ 52 .


The British accusations against France were not inconsequential as they seemed to have been the prevailing opinion in 1778 of the other European powers. An indication of this is that almost all the other powers took steps towards the recognition of the United States, after Britain had done the same in 1783 53 . It is perhaps also interesting to remark that the North American case became a ‘negative’ precedent in international law, as it gave rise to the doctrine of premature recognition 54 .


This meant that, when from 1822 onwards, Britain had decided on a course of recognition it needed to circumvent being confronted with the same accusations as it had brought against France in 1779 and which had become es­tablished practice in international law. Testimony to the fact that this was a real concern for Britain is a memorandum drafted in December 1821 in which the most important points of the diplomatic correspondence to and from Paris between the years 1774 and 1778 was summarized for the use of the Foreign Office to help guide its policy with regard to Spanish America. It stated that there had been numerous reports of French citizens aiding the North American rebels and indeed, of French governmental assistance having been covertly lent, amounting to a breach of neutrality 55 . There existed a real fear that the European powers would perceive Britain’s recognition of the Spanish American states as inconsistent in view of its complaints against France in 1779. Indeed, the resemblance between France’s recognition of the United States and Britain’s recognition of Spanish America did not pass entirely unnoticed to later scholars of international law either 56 .


The French situation of 1774–1778 was certainly quite similar to the British one with respect to Spanish America. The preservation of British neutrality had already been a sore point during the first phase of mediation between 1810–1822, when the Spanish court had complained of the shipment of arms and ammunitions to the Spanish American colonies and of the enlistment by British subjects in the insurgent armies. The British Law Officers confirmed the prevailing opinion in international law that if arms were imported by British subjects ‘into any country in hostility with Spain, or in insurrection against the Spanish government, they will be further liable to condemnation by the laws of war’ 57 . Therefore, a clause was inserted into the treaty of 1814 between Spain and Britain to prevent the export of arms, which was further enacted by several Orders-in-council 58 . In 1819, the unpopular Foreign Enlistment Act was adopted by Parliament to prevent the enlistment by British subjects into the rebel armies 59 . This was done to ensure that Britain could not be accused of breaching its strict neutrality.


3.2.2 The sovereign rights of Spain


The second development was the significant role the concept of intervention had come to play in European politics since the Congress of Vienna 60 . At the Congress in 1815, a new balance of power was adhered to by the great powers, based on a conservative and anti-revolutionary consensus and a willingness to intervene in the internal affairs of other states 61 . It strongly put forward the sovereign rights of legitimate rulers. While Britain had managed to steer clear of the new interventionist credo, it needed to take the conservative European sentiments into account in determining its international policy. Therefore, when Britain decided upon a course of recognition, hereby going directly against the dynastic rights of Spain and against the principle of legitimacy, it would have to show that its recognition was not an intervention in favour of the Spanish American insurgents.


In the summer of 1824, Canning had sent commissioners to several of the Spanish American states to gather information on the new states’ political status in order to ascertain whether commercial treaties could be concluded with Britain. It is clear from the instructions sent to the commissioners, that Canning felt that the consent of the mother country was not a necessary requirement for recognition. Or rather, Canning did not want to take Spain’s sovereign sensitivities into account, as commercial and geopolitical considerations were more important 62 . This was not so for the other European countries, such as France who reacted to the British September memorandum by emphasizing that Spain should be consulted first before any definitive steps were taken 63 . In the case of Austria, Prince Metternich had repeatedly argued that ‘it would be inconsistent with the principles of this Government to acknowledge any of the Colonial States until they had been recognised by the Mother Country’ 64 . ­Metternich argued that Spain’s right to prior recognition stemmed from the ­Spanish king’s right of sovereignty over the ex-colonies. This right ‘was un­questionably his until he made a formal surrender of it’ 65 . Any prior recognition by a third power would therefore amount to an illegal interference. It was the argument that had been put forward, evidenced by Britain’s own state practice as well, since the independence of the United States 66 .


Late eighteenth-century and early nineteenth-century legal scholars, while more liberal, also seem to have considered prior recognition either as illegal, or as requiring, at least, great prudence. As early as 1783, Steck argued that recognition could not take place before the mother country, as ‘eine stärkere Beleidigung lässt sich allerdings nicht gedenken, als ein abgefallenes, ein sich vom Mutterlande losreissendes Volk für entlediget seine Verbindungen mit demselben, für fren, für unabhängig zu erkennen’ 67 .


In 1789, Georg Friedrich von Martens seems to have considered recognition before that by the mother country possible, without it necessarily amounting to a breach of neutrality. He warned, however, that as long as the mother country had not recognized the rebellious state, it was often the case that prior recognition by a third state would be met with complaints from the mother country 68 . As to the subject of aiding the rebels, Martens had stated clearly that when obedience by the rebel state to the mother country had been formally refused through a declaration of independence, the ensuing conflict was to be treated by third states as one existing between two independent states. Any aid given would therefore be a breach of neutrality 69 . Equally, Klüber considered prior recognition possible, however:


Au contraire, la reconnaissance pas seulement de la possession par intérim, mais de l’indépendance définitive d’un peuple en insurrection illégitime, ou de celle d’un usurpateur, serait un outrage fait au souverain légitime, tant qu’il n’a pas renoncé ou qu’il ne doit être censé avoir renoncé à ses droits de souveraineté 70 .


Klüber therefore deemed that recognition could be illegal when the new state was not yet fully in possession of its territory or when the insurrection was illegitimate, without, however, specifying which insurrections were illegitimate. It is clear from the writings of the above-mentioned authors that while prior recognition, as a tentative step away from dynastic legitimacy, may have been legally possible according to international law, it was still surrounded by much uncertainty. When was a state in full possession of its territory? When was an insurrection and its recognition illegitimate? These questions remained unanswered.


Considering the importance of legitimacy in the international legal sphere, Britain did not immediately abandon its mediation between Spain and the rebel colonies, despite the fact that recognition had been put forward as a new strategy. While Britain did not consider Spain’s recognition as a necessary requirement for its own recognition of the Spanish American states, it would remain a lasting concern of Britain, even after 1822, to convince Spain to recognize its colonies, as ‘Great Britain would find herself relieved of many difficulties by carrying Spain along with her in such a Recognition’ 71 . Britain even tried to convince the Spanish American states to grant favorable trade conditions or even a pecuniary award to Spain in order to seduce the latter to recognize 72 . Perhaps the best proof of the fact that Canning was aware of the precarious legal ground for prior recognition, can be found in his reply to the French ­diplomat, Chateaubriand, who claimed that the independence of the colonies could never be secured without Spain’s recognition 73 . Canning admitted that ‘the force of this argument has already been admitted to a certain degree’. However, ‘that admission has its limits’. Indeed, commercial considerations and the threat of French ascendancy in the colonies outweighed concerns for legitimacy.


If the recognition by the mother country was arguably no longer a requirement, then what were the conditions for diplomatic recognition according to Canning? One of Britain’s main concerns was the termination of the struggle between the Spanish American states and Spain before any recognition could take place. This requirement can be traced back to Britain’s experience with regard to the independence of the North American colonies, where she had protested that the contest had not yet been terminated when France had recognized the United States 74 . Castlereagh’s September memorandum had also advised against the recognition of those Spanish American states that had not yet cast out all Spanish troops 75 . The requirement of a clear Spanish defeat was the main reason why Canning considered recognizing Columbia, Buenos Aires and Chili first, as Canning contemplated in November 1822: ‘Neither in Buenos Aires nor in Chili is there any vestige of Spanish force. In Columbia the single point occupied by Spain is Porto Cabello. Nor is there, in either of these three states, such a contest for power as either to endanger its independence or to disqualify it for maintaining external relations’ 76 .


Another indication can be found in the instructions sent to the commissioners who were to negotiate commercial treaties with the Spanish American states. Canning asked them to confirm the presence of four main elements with respect to the government of Buenos Aires, before such a treaty could be concluded:


1st. That any such State has renounced finally and irrecoverably all political connection with Spain. 2ndly. That it has the power as well as the will to maintain the Independence which it has established, and 3rdly. That the frame of its Government is such as to afford a reasonable security for the continuance of its internal peace, and for the good faith with which it would be enabled to maintain whatever relations it might contract with other Powers 77 .


The second requirement entailed both an objective (power) and a subjective test (will) of independence. The third requirement amounted to the establishment of a stable government that could maintain relations with third states. To both of these requirements the termination of any remaining armed struggle between Spain and her colonies was a precondition, which made it the most important requirement of all. Proof that these conditions were not mere political window-dressing can be found from Canning’s complaints that some of the reports received from the commissioners did not entail the detailed information necessary to decide upon recognition 78 . In order to reconcile prior recognition by Britain with the sovereign rights of Spain, these conditions needed to be argued in a sufficiently legal way. This was a difficult balancing act, as Craven has observed: ‘(…) it is equally clear that the further one goes in seeking to juridify the condition of ‘effective government’, the more one ­exposes the inevitable tension between a legal principle that seeks to allow the recognition of new aspirant entities once they have become legal facts so to speak, and one that prohibits any such recognition as being a violation of the territorial sovereignty of the State from which that entity is to emerge’ 79 .


3.2.3 Mackintosh’ and Canning’s speeches


In drawing a distinction between the three different modes of recognition in his September memorandum, Castlereagh was particularly at pains to show that neither de facto recognition, nor even diplomatic recognition amounted to an unjust intervention, and thus, an infringement of Spain’s sovereign rights and that British neutrality would remain unscathed once recognition had ­taken place. After Castlereagh, the same task fell to Canning. He received help to that effect from an unexpected corner, namely from Sir James Mackintosh, a member of the Whig opposition, who gave a speech in the House of Commons in favour of recognition that would have a lasting effect on international legal doctrine. Mackintosh, a practicing lawyer himself, had developed a passion for the law of nations and had offered to give a series of lectures on the subject at Lincoln’s Inn 80 . Unfortunately, of these lectures only the introduction has been published 81 . The numerous speeches he gave on the subject of the Spanish American struggle in the House of Commons show that he was an ardent supporter of independence. One pamphleteer also tells of a dinner having been organized on 10 July 1822 to the honour of Don Francisco Antonio Zea, the minister plenipotentiary of Columbia, in order to raise a loan for the new republic. The organizers styled themselves as ‘the friends of South American independence’. On the guest list were a number of affiliates of the commercial world and prominent Whig members of parliament, including Mackintosh. At the dinner, Mackintosh gave a speech to the occasion, announcing that he was most pleased to address ‘an assembly, the greater part of which was selected from the commercial interest of the greatest commercial city in the world’ 82 .


It was his ties with the commercial world and the general Whig support for independence that made Mackintosh align himself with Canning’s viewpoint. Indeed, Canning’s and Mackintosh’ political agendas were the same: they both wanted to persuade conservative domestic forces of the need for recognition. The purpose of the memorable speech Mackintosh gave in parliament was to introduce a petition of the merchants of the city of London to ‘induce his ­majesty’s government to recognize the independence of the states in those countries who have in fact established independent governments’ 83 . Before discussing the details of the petition, he would clarify to the House ‘the term “Recognition”, the introduction of which in these discussions has proved the principal occasion of darkness and error’. To lift this veil of darkness, he argued it was important to understand that there were ‘two senses [of recognition] so different from each other as to have nothing very important in common’.


Mackintosh argued that ‘the first, which is the true and legitimate sense of the word “Recognition” as a technical term of international law, is that in which it denotes the explicit acknowledgement of the independence of a country by a state which formerly exercised sovereignty over it’. It was the most important type of recognition as it freed ‘a nation from the evils of a disputed sovereignty’. It was a task not for Britain to do, but for Spain to undertake, who was the sole bearer of such rights of sovereignty. The second type of recognition, on the contrary, was not ‘recognition in its first and most strictly proper sense’. It was the recognition Britain claimed for itself. This recognition was virtual, as Britain was ‘called upon to treat [the Spanish American colonies] as independent; to establish with them the same relations and the same intercourse which we are accustomed to maintain with other governments’. Without actually ­naming them as such, these two senses came down to what Castlereagh and Canning had deemed as the distinction between de iure recognition to be done by Spain and the recognition by Britain, which was of a purely declaratory nature. ­Finally, like the two Foreign Secretaries, Mackintosh also claimed that ‘the tacit recognition of a new state, with which alone I am now concerned, not being a judgment for the new government, or against the old, is not a deviation from perfect neutrality, or a cause of just offence to the dispossessed ruler’. In other words, the type of virtual recognition he urged the government to do was not an unjust interference in the affairs of Spain.


Mackintosh’ speech in the House of Commons was followed by one from Canning himself, who admitted that he was glad ‘of the opportunity afforded me by the speech of my honorable and learned friend, and which opportunity I undoubtedly thank him for of putting on its true ground, and in its just light, the expression of “recognition” which has been so much mistaken’ 84 . Indeed, Canning now took the occasion to justify to Parliament the policy Britain had pursued so far, while also preparing the ground for the diplomatic recognition that was to follow next. To that end he also distinguished between the two types of recognition. The first type occurred where ‘the colonies say to the mother country “we assert our independence”, and the mother country answers, “I admit it”’. The second type occurred where ‘the colonies say to another state, “We are independent”, and that other state replies, “I allow that you are so”’. The last type was the kind of recognition, according to Canning, that merely came down to the acknowledgement of the fact of independence, without actually establishing independence as such, because ‘the simple recognition by any neutral power, if it were not misunderstood, could have no such effect’. Neither Mackintosh, nor Canning referred in these instances to diplomatic recognition, but to de facto recognition, as distinct from recognition de iure to be left to Spain. Of course the main and simplified message Mackintosh, but especially Canning, wanted to send was that the recognition Britain was pursuing was merely of a declaratory nature.


If Canning, with the indirect help of Mackintosh managed to persuade the Cabinet, he did not convince the European powers. The specter of the North American colonies could not be completely banned from the European – and especially the French – mind. In a dispatch sent by Chateaubriand to the Prince de Polignac, Chateaubriand stated that if Britain decided to recognize, she should be prepared for a Spanish declaration of war in the same way that Britain had declared war on France in 1778. In a commentary on the dispatch, subsequently distributed to the other European courts, Canning replied that the situation was entirely different from that of the French recognition of the United States. While France had clearly pursued a policy of aiding the insurgents, Britain had preserved its neutrality throughout Spain’s contest with her colonies. It therefore had to be concluded that ‘there were no such causes for war on the part of Spain against England as there were on that of England against France in 1778’ 85 . As this section has so far shown, by arguing that recognition was declaratory, Britain had attempted to evade the precedent of the North American colonies and the complaints of the continental powers. Canning had received the strong support of the commercial lobby of Britain, embodied by Mackintosh. As will be shown next, Canning’s and Mackintosh’ parliamentary speeches would go down in history as perfect elucidations of the doctrine of recognition.


3.2.4 The constitutive dimension of diplomatic recognition: the lack of legal personality


Yet before this took place, Canning would give the British concept of recognition a remarkable and unexpected constitutive twist. One strategy to convince the other powers of the harmlessness of recognition had been to show that recognition would not amount to an intervention. The other strategy Canning employed in pushing towards recognition was by consistently complaining of piracy in the Atlantic seas and the lack of international legal personality the Spanish American states had to suppress it as long as they remained unrecognized. In fact, immediately after he came into office, Canning sent an additional memorandum to the Duke of Wellington, who was to add this argument to the negotiations at the Conference of Verona: ‘(…) the relaxation of the authority of Old Spain over the whole of that part of the world have let loose a multitude of pirates and buccaneers, who lurk on the coasts and in the harbours of the Spanish colonies (…) and disturb the trade and insult the flag of Great Britain by acts of violence, confiscation, cruelty and murder’ 86 .


Since the beginning of the conflict, there had indeed been numerous reports of British vessels being attacked by Spanish ships or ships from the rebel colonies. The Law Officers had already advised Castlereagh on this point as early as February 1817. According to them, if no redress was offered by Spain for the damage caused to British commerce, then specific courts ought to be set up by the Spanish American states. However, any British participation with these courts would amount to recognition 87 . In his dispatches to Wellington, Canning therefore stressed the need to convey upon the other powers that despite the numerous promises by Spain to address the wrongs caused by Spanish American piracy, there still had not been any form of redress from Spain. So the question was whether it was still possible ‘to expect that this evil should be thoroughly extirpated without the co-operation of the local authorities occupying the ports and coasts of South America’ 88 . A memorandum conveying virtually the same message was drafted for the Cabinet where the conservative forces were not yet entirely convinced of the need for recognition. Canning therefore stressed that any co-operation with the Spanish American states to stop piracy would necessarily ‘lead to some further recognition of the existence de facto of some one or more of these self-created governments’ 89 . The choice of words is very meaningful, as Canning again wanted to emphasize that diplomatic recognition by Britain would not add anything more beyond the de facto status of the colonies.


The obvious paradox in that regard is Canning’s assurance that, on the one hand, diplomatic recognition was essentially of a political and therefore a declaratory nature, and, on the other hand, his insistence that as long as the colonies were not recognized they lacked the international legal personality to act against piracy. The same ambiguity can be traced in his address to the Cabinet, when he asked the following question: ‘What resource have we but to take away all pretext for the enforcement of these absurd and obsolete pretensions against us, by conferring on the colonies, so far as our recognition can do it, an independent, instead of a colonial character, thus cutting short all disputes as to Spain’s Colonial jurisdiction?’ 90 . The same reference to the serious harm caused to the rest of the world when leaving the Spanish American states in a legal vacuum while confusing declaratory and constitutive elements of recognition was intimated to Spain:


If (…) the total irresponsibility of unrecognized states, be too absurd to be maintained, and if (…) the treatment of their inhabitants as pirates and outlaws be too monstrous to be applied, for an indefinite length of time, to a large portion of the habitable globe, no other choice remained for Great Britain, or for any country having intercourse with the Spanish American Provinces, but to recognize in due time their political existence as States, and thus to bring them within the pale of those rights and duties, which civilized nations are bound mutually to respect and are entitled reci­procally to claim from each other 91 .


The eagerness with which Canning wanted to convince the other European powers and the British Cabinet to recognize the new states was not lost on the Duke of Wellington, who at the Conference of Verona had been entrusted with the task of preparing the Continent for the imminent recognition of Spanish America. In October 1822, he remarked in a dispatch to Canning: ‘I know that we must at last recognise all these governments, but I would recognise them when necessary, and only when really constituted and become powers, instead of seeking for reasons for recognising them, and by recognizing them constitute them 92 . In a lengthy reply to the Duke of Wellington, Canning addressed the latter’s concerns, by arguing that eventually Spain would have to recognize its colonies and that in any case ‘if (…) we shall contribute (as perhaps it must be admitted that we may) toconstitutethe colonies into States by our recognition; on the other hand, it must be recollected that our abstinence will not necessarily much retard that constitution’ 93 . If that would not sway the Duke’s mind, then perhaps the age-old argument that should the colonies remain under Spanish reign ‘it may be doubted whether the world would gain by the bargain – or rather whether England would gain, that being in this particular question, above all other the world for which we are bound to provide’ 94 .


It is clear that Castlereagh and Canning’s insistence that Britain’s recognition of the Spanish American states belonged to the realm of politics and that it was of a distinctly declaratory nature was to some extent incongruous with Canning’s professions that unrecognized states lacked legal personality. What to make of this inconsistency? Nothing much, it seems. Canning’s difficulties in persuading his own Cabinet lie at the origin of this confusion. Both Castle­reagh and Canning have indeed consistently argued that in recognizing the Spanish American states they were performing an essentially political act that added nothing to the already established independence of the new states, as they had indeed intimated to Spain several times. It was to be left to the scholars of the law of nations to make sense of Britain’s state practice.


4 The reception of the recognition of Spanish America by legal scholars


4.1 1820–1870


While it was the United States that had recognized the Spanish American states first, it was the example of Britain that everyone looked to 95 . In the years following the recognition of the Spanish American states by Britain and the other European powers, legal scholars praised it as the prime example of how recognition should be granted. It is no surprise then that the literature on recognition of new states only really kicked into gear from the 1820’s onwards. The ample legal justifications given by Britain for its recognition shifted the attention of legal scholars from the possible tortious effect of recognition on the relationship between the mother country and third states to that of the effect of recognition on the relationship between third states and the new state and of the latter’s status in international law.


As much as the premature recognition of the United States by France had become a negative example of recognition, so did the Spanish American case become the archetype of recognition in the period between 1820 and 1870, to especially English and American scholars of international law. The prominent role Britain played in the independence struggle and the subsequent recognition of Spanish America was mirrored by a heightened interest from British and American writers in the subject of recognition in general and in the Spanish American case in particular. It is no surprise that especially British writers seem to have considered the Spanish American example as the ideal form of recognition. The independence struggle of the Spanish American states and the process of their recognition were amply reported on by the British press 96 . Some of the diplomatic correspondence and parliamentary speeches relating to the conflict were also published in the British and For-eign State Papers, such as the correspondence with the Prince de Polignac 97 , ­Mackintosh’ and Canning’s speeches, but also Canning’s note to the Chevalier de los Rios 98 , complaining of the lack of legal responsibility of unrecognized states 99 .


Some of the ambiguities present in state practice as to the function of recognition by third states seem to have found their way into the jurisprudence discussing the Spanish American case. American author, Henry Wheaton, in his first edition of the Elements of international law of 1833, expressed the same kind of uncertainty as to the exact function of recognition:


If the revolution in a state be effected by a province or colony shaking off its sovereignty, so long as the independence of the new state is not acknowledged by other powers, it may seem doubtful, in an international point of view, whether its sovereignty can be considered as complete, however it may be regarded by its own government 100 .


Wheaton therefore took into account the possibility of the constitutive function of recognition. However, he also asserted that


the more recent example of the acknowledgement of the independence of the Spanish American provinces by the United States, Great Britain, and other powers, whilst the parent country still continues to withhold her assent, also concurs to illustrate the general understanding of nations, that where a revolted province or colony has declared, and shewn its ability to maintain, its independence, the recognition of its sovereignty by other foreign states is a question of policy and prudence only 101 .


Wheaton mentioned Mackintosh as a scholar of international law in his introduction and also referred to the speeches that Mackintosh and Canning gave to the occasion of the discussion in Parliament of the Foreign Enlistment Act, yet there are no references to either of them in Wheaton’s passages on recognition 102 . However, in the passage on foreign enlistment and neutrality with respect to Spanish America, which seems to have been overlooked by legal historians writing on the history of recognition, some of the diplomatic correspondence of Castlereagh and Canning on the subject of recognition is referred to. Wheaton also added: ‘In process of time, as those [Spanish American] colonies became more powerful, a question arose of a very difficult nature, to be decided on a due consideration of their de jure relation to Spain on the one hand, and their de facto independence on the other’ 103 . The wording is indeed very similar to that used by Mackintosh and Canning.


The constitutive elements of the first edition are elaborated upon more fully in the 1846 edition. Here, Wheaton makes a distinction between internal sovereignty, the establishment of which does not depend on the recognition by third states, and external sovereignty, which ‘may require recognition by third states’. This recognition of external sovereignty seemed to come down to the recognition of legal personality, as Wheaton argued that if the new state desired to become a part of the society of nations and to exercise the rights and duties that accompany such membership, recognition was a requirement 104 .


After the 1850s, more British treatises on international law began to appear. Under the influence of positivism, these works analyzed state practice in greater detail, moving beyond the focus on the broad principles of recognition. The first British scholar to analyze recognition in great detail was civilian, Sir Robert Phillimore, in his Commentaries upon international law of 1855. His writings on recognition had a major influence on other legal scholars 105 . The increasing attention to the link between intervention and recognition is symptomatic of the fact that the constitutive theory of recognition was slowly gaining ground over the declaratory conception of recognition. Indeed, if it was accepted that recognition was a pre-condition for the creation of new states, then the question necessarily arose if recognition was not an infringement of the sover-eignty of the mother country. Therefore, Phillimore described recognition as ‘a kind of moral intervention by one State in the affairs of another’ 106 . Recognition by third states consisted, according to Phillimore, of two types: virtual and formal recognition. While the terminology is different, these two types of recognition are the same as the de facto and diplomatic recognition devised by Castlereagh in the September memorandum and subsequently adopted by Canning.


Such a virtual recognition was to take place when the contest was protracted and the rebellious colony was not clearly on the losing side 107 . Reference by Phillimore in a footnote can be seen to Canning’s speeches in Parliament on the subject of the recognition of the Spanish American states. Unlike other scholars, Phillimore identified the actions that amounted to such a virtual recognition, namely when third states ‘recognise its commercial flag, and if they sanction the appointment of consuls to the ports of the new State’, which amounted exactly to the actions that Castlereagh and Canning had identified as a de facto recognition. In due course, after the virtual recognition had taken place, formal recognition was to follow, ‘evinced by the sending of diplomats, and the entering into treaties on the part of Foreign powers, with the new State’. As Phillimore considered recognition a type of moral intervention, it is perhaps not surprising that formal recognition meant to him a departure from neutrality, as hereby ‘the Neutral Power becomes the ally of one of the hitherto Belligerent parties’ 108 . Therefore, before such a step could be taken, two important conditions, very reminiscent to the conditions set out by Canning before diplomatic recognition could take place, had to be fulfilled


1. The practical cessation of hostilities on the part of the old State, which may long precede the theoretical renunciation of her rights over the revolted member of her former dominions.


2. There should occur the consolidation of the new State, so far at least as to be in a condition of maintaining International relations with other countries; an absolute bonâ fide possession of independence, as a separate kingdom, not the enjoyment of perfect and undisturbed internal tranquility, – a test too severe for many of the oldest kingdoms –, but there should be the existence of a Government, acknowledged by the people over whom it is set, and ready and able to acknowledge and to prove its responsibility for their conduct when they come in contact with foreign nations; – where such a Government as this exists, the question of Formal recognition is rather one which concerns the internal policy of other kingdoms, than a question of an International character 109 .


The first condition entailed the cessation of hostilities between the con­tending parties. The second requirement, namely the consolidation of the new state, had to be the result of a ‘bonâ fide possession’. It is not entirely clear what he meant by this, but it seems that at least a revolt – or perhaps even a coup – did not preclude recognition. All that was required was a government accepted by the people, that was ready and capable to adhere to its inter­national responsibilities. Importantly, despite the fact that he viewed formal recognition as moral intervention, he still argued that formal recognition belonged to the realm of politics rather than of international law.


Much of the literature discussing conceptual and practical differences between recognition and intervention originated during or in the aftermath of the American civil war, during which calls for recognition of the Southern states were addressed to Britain. William Harcourt, writing under the pseudonym of Historicus published a series of letters in the Times relating to international law, which were subsequently published in two separate treatises in 1863 discussing this very problem. Unlike Phillimore, he did not consider recognition as a type of intervention. Harcourt argued, that many people were confused about the exact meaning of the two doctrines, which he inferred from a speech given in parliament urging the recognition of the South by citing the example of the ‘recognition’ of Belgium and Greece. To this, Harcourt commented that the case of Belgium was clearly one of intervention, as the aim of the great powers had not been to create the independence of Belgium 110 . Seeing as how the struggle in Belgium between the contending parties had been far from over, this precluded the possibility of the actions of the powers from being recognition 111 . The same could be said with respect to Greece, where the rebels had been on the point of surrendering to the Ottoman Porte, when the Great powers forcibly intervened 112 . Indeed, if there was one good example of recognition, it had to be that of Spanish America, which Harcourt described as ‘the celebrated recognition of the South American republics by Mr. Canning’ 113 .


According to Harcourt, recognition was to take place when the new state had acquired its de facto independence. However, there ‘still remains the difficult question, What constitutes de facto independence?’ 114 . When considering the case of the Spanish American states, the prime conditions for recognition were the termination of the struggle between the rebels and the mother country and the establishment of independence beyond the probability of reversal 115 . Harcourt referred here to the principles laid down by Mackintosh and Canning in their speeches to parliament.


It seems as if Harcourt considered recognition to be predominantly declaratory, as he stated: ‘It is sometimes said that the question of recognition is one of policy – and this is true, if considered with respect to the community which has recently asserted its independence’ 116 . However, he also asserted that the question of whether a state becomes independent and, therefore, when subjects of a state ceased to be subjects as ‘a question of mixed law and fact which is not very easy of solution’ 117 . Harcourt, therefore, did not give a definitive answer as to the function of recognition.


The same concern for a clear separation between intervention and recognition can be found in the writings of Frederick Waymouth Gibbs, barrister and tutor to Edward VII. He wrote an essay devoted to the subject of recognition also on the occasion of the American civil war, in which he made a detailed comparison of the recognition of Britain’s North American colonies and that of the Spanish American states, describing each respectively as ‘the worst precedent and the best precedent of Recognition’ 118 . Gibbs admitted that recognition was a relatively new subject to scholars of international law and that ‘great misconception often prevails as to the meaning of the term Recognition, the nature of the act, and the consequences resulting from it to the State recognised’ 119 .


Earlier writers had considered it as a form of intervention and indeed, ‘the measure can obviously be adopted with this view, and cannot then be distinguished from intervention’. An example of such a case was that of the recognition of the United States by France, in 1778. Indeed, the boundaries between intervention and recognition, according to Gibbs were not entirely clear. Without making any explicit reference to Phillimore, Gibbs described recognition as a kind of moral intervention, as it amounted to a moral judgment of the righteousness of the rebellion 120 . Furthermore, Gibbs argued that recognition might strengthen the insurgents in their resolve to maintain the fight hereby infringing the rights of the mother country. The ambiguities concerning the exact function of the recognition by third states in Gibb’s text are clear. While recognition may be deemed as a type of moral intervention that may aid the establishment of independence, he still considered recognition by third states to be a declaratory act as the third state has no sovereignty to cede. For this analysis of the function of recognition, Gibbs relied on the parliamentary speeches given by Mackintosh and Canning and made the distinction between de iure and de facto recognition.


Continental writers seem to have remained closer to the traditional pre-1820s viewpoints on recognition, characterized by a relatively strong focus on legitimacy and on the declaratory, and even superfluous nature of recognition by third states. Saalfeld did not discuss the function of recognition as such, but merely asserted that third states were to adhere to a strict neutrality in case of revolt of another nation’s colonies. Furthermore, recognition could not take place if it could not be inferred that the sovereignty of the mother country had not been relinquished: ‘als unentschieden aber gilt eine Souverainität, wenn der frühere Souverain noch festen Fuß in dem Lande hat, das sich als souverain und als unabhängig aufführt, das heißt, so lange er in demselben noch feste Plätze im Besitz hat oder eine Armee im Felde unterhält’ 121 .


Another example is August Wilhelm Heffter who in 1844 wrote that:


so lange der beiderseitige Kampf dauert, der sein altes Recht vindicirende Staat nicht dasselbe aufgiebt oder nicht ganz außer Stand zu seiner ferneren Verfolgung gesetzt wird, ist kein Dritter verpflichtet oder be­­rechtigt, den neuen Staat anzuerkennen oder mit ihm als solchem einen politischen Verkehr zu beginnen 122 .


It is not clear from Heffter’s writing what he considered to be ‘politischen Verkehr’ or whether this amounted to a de facto recognition sensu lato or sensu stricto and which actions amounted to a recognition. It is, however, evident that for Heffter recognition was a purely declaratory act. Indeed, for third states the independence of new states was ‘nichts als eine Gegebenheit, eine weltgeschichtliche Revolution und deren Geschehenlassen oder Trennung eine Frage der Politik und Sittlichkeit’ 123 . There was nothing constitutive about the act of recognition. Recognition was therefore nothing more than the confirmation of an already established fact 124 . While Heffter referred in his annotations to several precedents from state practice, such as the independence of the United States or of the states of Spanish America, he did not actually discuss them, remaining close to the traditional scholarly focus on the main principles of recognition.


Equally, German-born and adoptive Brit, Heinrich Bernhard Oppenheim found that recognition by third states did not add anything substantial to the fact of independence: ‘Die Anerkennung selbst ist aber weder Grund, noch Bedingung der Souverainität; sie fügt diesem Rechte des Besitzes, welches eben auf der selbstbestimmenden Kraft des Volkes beruht, nichts hinzu’ 125 . The fact that recognition was a mere declaratory act had important consequences. Firstly, according to Oppenheim, it was unnecessary for recognition to happen explicitly. It could just as easily be inferred from tacit actions. Secondly, it implied that recognition could never be invoked as a casus belli by the mother country or even, as he called it, ‘eine justa belli causa’, not even when the third state had recognized the new state before the mother country had done so, as had happened in the case of the North American provinces.


None of the above-mentioned writers refer explicitly to the case of the Spanish American colonies or to the leading role that Britain played in it. It is through the British and American writers that the Spanish American precedent would be disseminated. Unlike their continental counterparts who still adhered, to a large part, to the declaratory conception of recognition, they seem to have struggled more with the ambiguities entwined with the exact function of recognition by third states. It is impossible to establish with certainty whether this confusion stems from the ambiguities of British state practice. In any case, it is safe to say that the Spanish American case and the doctrine of recognition created by Castlereagh and Canning had a profound influence on British and American writers. Henry Wheaton’s position with regard to recognition has been described by Crawford as the middle ground between the declaratory views of the late eighteenth and early nineteenth century and the more constitutive conception of recognition adhered to by the late nineteenth century legal scholars. The same can be said with respect to all Anglo-American writers between 1820 and 1870.


4.2 1870–1900


The recognition by Britain of the Spanish American states remained for many legal scholars of the late nineteenth century the best example of the doctrine of recognition. As the disciplines of international law expanded and professionalized, the Spanish American case gained more attention from continental authors. Reference was still amply made to the parliamentary speeches given by Mackintosh and Canning. The Spanish American case was cited most in order to illustrate that the prior recognition by the mother country was not necessary. As long as the struggle with the rebel state was over, the mother country was not entitled to view the recognition by third states as an injury. Lawrence asserted in that respect that, while Spain had maintained its claim over the new republics, it could not accuse Britain of a breach of neutrality as Spain could no longer maintain an actual struggle with its ex-colonies 126 . Blüntschli also mentioned the Spanish American case, in reference to Phillimore’s citation of Canning’s speech that the recognition by the mother country was merely of importance because it was synonymous with ‘den Stempel der Rechtmässigkeit’ 127 .


Hall highlighted the lack of clear guidelines as to the conditions that needed to be present before recognition by third states could take place. He admitted that ‘the true principles of actions are best illustrated by the conduct of England and the United States with respect to the South American Republics, and in the debates which took place in Parliament when the question of their recognition was considered’ 128 . Many writers indeed inferred from the South American precedent that recognition could not take place as long as the struggle was still going on, and, likewise, that the mere pretension of sovereignty on the part of the mother country was not enough to prevent third states from recognizing 129 . It is equally possible to find entire descriptions of the Spanish American case and the principles set out by Britain in the treatises of Carlo Calvo and James Kent 130 .


From the 1870s onwards, the inclusion of new states into the family of nations and the issue of international legal personality played an important role. This is another step away from the early nineteenth-century views that recognition was merely a political and, even, a superfluous act. Indeed, if we look at the theoretical evolution of the function of recognition, over time, more and more legal attributes seem to have been accorded to the concept of recognition by third states. As early as 1861 Twiss wrote:


A dependency may separate itself from the independent political community of which it has been a member, and may declare itself an Independent Sovereign State; and so long as the new State confines its action within the Civil Society of which it is composed, it does not require any recognition of its Sovereignty from other States. But if it seeks to hold international intercourse with other States, and claims to be received into the fellowship of Nations upon terms of equality and reciprocity with other Nations, it must obtain from them the recognition of its Independence as a preliminary step’ 131 .


Tellingly, Blüntschli wrote a section on recognition of states as part of a chapter called ‘Völkerrechtliche Personen’. He further made an important distinction between the question of, on the one hand, how states were created and in what form, which he delegated to the realm of constitutional law, and, on the other hand, how new states could establish international relations with third states, which was an issue to be decided by international law. The function of recognition was therefore ‘die Aufnahme des neuen Staates in die völkerrecht­liche Staatengemeinschaft’ 132 . In order to be able to recognize a new state, the third state would first have to assess whether the new state had sufficient legal personality to embrace its international rights and duties.


This viewpoint would be further elaborated upon by writers such as Rivier, Pradier-Fodéré and Bonfils. They maintained that the birth of the state itself and the creation of its internal sovereignty did not concern international law. The distinction lay between ‘la jouissance’ or the enjoyment of sovereignty on the one hand, and the exercise of it on the other. The latter could not take place without recognition by third states, as Bonfils wrote: ‘La jouissance de la ­souveraineté appartient à l’Etat dès qu’il est né; mais l’exercice de cette souve­raineté, sa mise en action n’est pas possible que si le nouvel état a été reconnu’ 133 .


Variations on this general theme of the exercise of rights and duties and the inclusion in the family of nations can be found in the writings of other authors as well 134 . Nys, in reference to Blüntschli, wrote that the existence of the state, as much as the justice or injustice of its foundation, were matters of public law. Recognition for Nys meant ‘l’entrée d’un nouveau membre dans la société des Etats’ 135 .


More extreme constitutive views are to be found in the writings of Lassa Oppenheim and James Lorimer. Oppenheim argued that recognition was needed to become a member of the family of nations, the membership of which he equated with the creation of legal personality, as he wrote: ‘A state is and becomes an International Person through recognition only and exclusively’ 136 .


Lorimer made the doctrine of recognition the foundation stone of his entire system of international law and added a touch of ethnology to his concept of recognition 137 . He identified three stages of recognition corresponding to three stages of human development. Firstly, plenary political recognition, which belonged to the province of civilized humanity. Secondly, partial political recognition corresponding to barbarous humanity and, finally, mere human recognition which was reserved for savage humanity 138 . Only plenary political recognition and the states belonging to civilized humanity were objects of study for legal scholars. To Lorimer, recognition was unquestionably of a constitutive nature. Indeed, any doctrine that failed to acknowledge this clear fact ‘deprives international law of a permanent basis in nature, and fails to bring it within the sphere of jurisprudence’ 139 . Evidence of the real nature of recognition was to be found in state practice and was closely related to the very existence of the state itself:


the case is one of the many in which practice has been more philosophical than theory; for there is probably no historical instance of recognition being refused to a State which did not, substantially, amount to a denial of the existence, as a State, of the community which claimed it 140 .


Lorimer further described recognition as a gradual process, which started with the recognition of belligerent status. This was followed by recognition for neutral purposes, which included the sending of consuls to the new state. Finally, formal and public recognition meant the acknowledgement of the presence of the rights and privileges of an adult political community. This was achieved through the sending of ambassadors to or the entering into treaties with the new state 141 .


Despite the fact that no mention of them is made, Lorimer’s latter two types of recognition are identical to Castlereagh’s and Canning’s de facto and diplomatic recognition 142 . The influence of Canning’s insistence on the lack of legal personality of unrecognized states is clearly visible in the commentaries of late nineteenth-century writers who argued that recognition was necessary for the exercise of international rights and duties by new states. A clear example is Nys, who uses Canning’s dispatch to Los Rios of 25 March 1825 to illustrate the function of recognition:


Canning a montré en termes excellents toute la signification; toute la portée de la reconnaissance quand, le 25 mars 1825, il a écrit qu’elle tendait à étendre au profit des nations nouvelles la sphère des droits que les peuples sont tenus de respecter mutuellement et qu’ils ont le droit d’exiger réciproquement les uns des autres 143 .


The same dispatch is cited by Calvo, who devoted ample attention to the Spanish American case 144 .


5 Conclusion


When on 12 December 1825 Canning rose in front of a packed House of Commons to defend the policy his cabinet had pursued with respect to Spanish America, he exclaimed: ‘I called the New World into existence to redress the balance of the old’ 145 . Canning’s words are as legendary as they are ambiguous. Indeed, Britain’s state practice with regard to recognition by third states is characterized by pragmatism and the making of strategic choices between what legal scholars today describe as the declaratory and the constitutive conception of recognition. Britain’s first choice had been to mediate between Spain and its colonies. Only when the European and domestic political situation had changed, did Castlereagh decide to pursue a policy of recognition. In doing so, both Castlereagh and Canning were bound by the precedent of the independence of the North American colonies. In 1779, Britain had declared war against France for its recognition of the United States, which, it claimed, had been an illegal intervention. Confronted with an international legal precedent which Britain had itself created, Castlereagh and Canning had to maintain that their recognition of Spanish America was not an intervention. On top of this, the Holy Alliance had, since the Congress of Vienna, set the principle of legitimacy again high on the agenda. The de facto and diplomatic recognition set forth in the September memoranda were therefore styled as being of a declaratory nature and as not encroaching on the sovereign rights of Spain. Canning also created a number of conditions to which the new states needed to live up to before recognition could take place, the presence of which was to be determined by British commissioners. These conditions were the termination of the struggle with the mother country, the presence of a stable government and the capacity of the new state to engage in international relations with third states. However, the process of recognition did not run as smoothly as Britain had hoped. Canning encountered difficulties in persuading the conservative forces within Britain and the Holy Alliance of the necessity of recognition. He therefore invoked the acts of piracy perpetrated against British ships in order to illustrate that as long as the Spanish American states remained unrecognized, they lacked the international legal personality to extinguish piracy.


Castlereagh and Canning’s main concerns were not what the precise func­tion of recognition by third states was and, thus, neither whether recog­nition was of a declaratory or a constitutive nature. Their principal objective was to ensure the recognition of Spanish America in an internationally and domes­tically acceptable legal way and to make sure, that – in Canning’s words – Spanish America was ‘English’. It is therefore no wonder that both declaratory and constitutive elements are present in Britain’s state practice of recognition. As Ryngaert and Sobrie have remarked: ‘Modern state practice indeed offers a plethora of ‘hard cases’ that, in their entirety, cannot be fitted into either one of the legal theories, but are somehow accommodated by the international legal order’ 146 . What is said of modern state practice therefore also seems to ring true for historical state practice.


There is no doubt that Britain’s state practice of the recognition of Spanish America has had a profound influence on scholars of international law. It has been hailed as the prime example of recognition. Unlike politicians, nineteenth-century writers with a scholarly enthusiasm for international law were interested in the exact function of recognition by third states. They found themselves confronted with a legal question, not only notorious for its dif­ficulty, but also illustrated by a state practice that was far from consistent. ­Anglo-American writers were on the foreground to discuss the doctrine of recognition. Writers such as Wheaton, Phillimore, Gibbs and Harcourt seem to have held a middle ground between declaratory and constitutive views. However, as international law progressed into a science increasingly dominated by positivism, Britain’s recognition of the Spanish American states was increasingly appropriated into a constitutive, and, as the example of Lorimer has shown, an exclusionary discourse. It was therefore given a meaning that was very far removed from Castlereagh’s and Canning’s original concept of recognition. In order to understand truly the doctrine of recognition, it is therefore necessary to employ a three-pronged approach that includes political context, state practice and theory. Such an approach may indeed highlight the way theory, if separated from the other two elements, may begin to lead a life of its own.


1I. Brownlie, Recognition in theory and practice, in: R.St.J. Macdonald and D.M. Johnston (eds.), The structure and process of international law, Dordrecht 1986, p. 107–123 and also quoted in M. Fabry, Recognizing states: international society and the establishment of new states since 1776, Oxford 2010, p. 272.


2H. Lauterpacht, Recognition in international law, Cambridge 1948, p. 26–37; C. Ryngaert and S. Sobrie, Recognition of states: international law or realpolitik?, The practice of recognition in the wake of Kosovo, South Ossetia, and Abkhazia, Leiden journal of international law, 24 (2011), p. 468.


3J. Crawford, The creation of states in international law, 2nd edn., Oxford 2006, p. 4.


4T.D. Grant, The recognition of states, Law and practice in debate and evolution, Connecticut 1999, p. 1.


5Grant, Recognition of states (supra, n. 4), p. 4–12.


6T. Chen, The international law of recognition, with special reference to practice in Great Britain and the United States, London 1951, p. 3.


7G. Boas, Public international law: contemporary principles and perspectives, Cheltenham 2012, p. 172; Grant, Recognition of states (supra, n. 4), p. 1–18; H. Kelsen, Recognition in international law, Theoretical observations, The American journal of international law, 35 (1941), p. 605–617.


8Lauterpacht, Recognition in international law (supra, n. 2), p. 26–37.


9Crawford, Creation of states (supra, n. 3), p. 12.


10A. Anghie, Imperialism, sovereignty and the making of international law, Cambridge 2005, p. 356.


11See for the standard of civilisation: G.W. Gong, The standard of civilisation in international society, Oxford 1984, p. 100.


12C.H. Alexandrowicz, The theory of recognition in fieri, British Yearbook of International Law, 34 (1958), p. 176–198; J. Crawford, Creation of states (supra, n. 3), p. 12–13; Fabry, Recognizing states (supra, n. 1), p. 23–48; C. Hillgruber, Die Aufnahme neuer Staaten in die Völkerrechtsgemeinschaft, Das völkerrechtliche Institut der Anerkennung von Neustaaten in der Praxis des 19. und 20. Jahrhunderts, [Kölner Schriften zu Recht und Staat], Frankfurt am Main 1998, p. 5.


13See for an exception: Hillgruber (supra, n. 12), p. 827. Hillgruber focuses, however, very much on the conditions of statehood which new states needed to fulfil and less on the function of recognition.


14E. Keene, Beyond the anarchical society, Grotius, colonialism and order in world politics, Cambridge 2002, p. 180; M. Koskenniemi, The gentle civilizer of nations, The rise and fall of international law 1870–1960, Cambridge 2002, p. 569; J. Pitts, Boundaries of Victorian international law, in: Victorian visions of global order, Empire and international relations in nineteenth-century political thought, ed. D. Bell, Cambridge 2007, p. 67–88; J. Pitts, A turn to Empire, The rise of imperial liberalism in Britain and France, Princeton 2005, p. 382; C. Sylvest, British liberal internationalism, 1880–1930, Making progress?, Manchester 2010, p. 276


15Lauterpacht, Recognition in international law (supra, n. 2), p. V, also quoted in J. Crawford, Brownlie’s principles of public international law, 8th ed., Oxford 2012, p. 144.


16Fabry, Recognizing (supra, n. 1), p. 272.


17M. Craven, Law and its histories, in: Time, history and international law, eds. M. Fitzmaurice [and] M. Craven, Leiden 2007, p. 2; J.D. Haskell, Divine immanence, The evangelical foundations of modern Anglo-American approaches to international law, Chinese journal of international law, 11 (2012), p. 434 and p. 435 (n. 11); R. Lesaffer, Law between past and present, in: Law and method, interdisciplinary research into law, eds. B. van Klink [and] S. Taekema, Tübingen 2011, p. 18.


18Spanish America is the region comprising the former colonies of Spain to the exclusion of the former French and Portuguese colonies. It is here used as a general denominator, as it was also used as such by the British politicians discussed below.


19Modern legal doctrine distinguishes between recognition of governments and recognition of states. Both expressions were used interchangeably in nineteenth-century state practice to describe the recognition of states, which is the focus of this article. On the subject of the recognition of governments, historical research has been done especially with regard to the governments in exile which established themselves in Great Britain in the 1940’s. See the case of In re Amand and M.J. Peterson, Recognition of governments, Legal doctrine and state practice 1815–1995, Basingstoke 1997, p. 295; S. Talmon, Recognition in international law, With particular reference to governments in exile, New York 2001, p. 472.


20Throughout the article, also in its historical sections, a reference to the ‘declaratory’ or ‘constitutive’ theory is maintained. This is done for the sake of argument only to illustrate that certain declarations made by British politicians and lawyers would according to modern standards fall in either one or the other category. Nevertheless the author is fully aware that these theories, in their contemporary denominations were unknown to nineteenth-century politicians and scholars.


2124 September 1819, Viscount Castlereagh to Lord Stewart, FO 7/142, in: Britain and the independence of Latin America 1812–1830, Select documents from the foreign office archives, C.K. Webster, iII, Oxford 1938, II, p. 5; J. Rydjord, British mediation between Spain and her colonies, The Spanish American historical review, 21 (1941), p. 30.


22R. Blaufarb, The Western Question, The geopolitics of Latin American independence, American historical review, 112 (2007), p. 745.


2324 December 1812, Viscount Strangford to Viscount Castlereagh, FO 63/125, in: Britain (supra, n. 21), i, p. 84.


241 April 1812, Viscount Castlereagh to Sir Henry Wellesley, FO 72/127, in: Britain (supra, n. 21), II, p. 312.


25C.K. Webster, Castlereagh and the Spanish colonies, i, The English Historical Review, 27 (1912), p. 84. See also the memorandum circulated to the other powers at the Paris conference of 1817, in which Castlereagh stated that Britain could under no circumstances ‘consent that [Britain’s] Mediation would assume an armed character’: 20 August 1817, Foreign Office ‘Confidential Memorandum’, FO 72/204, in: Britain (supra, n. 21), II, p. 356.


26C.K. Webster, Castlereagh and the Spanish colonies, II, The English Historical Review, 30 (1915), p. 640. At the conference of Aix-la-Chapelle Castlereagh reaffirmed Britain’s policy of non-intervention in answer to Russia’s insistence on a commercial boycott of the ­colonies, and as an alternative, its proposal to keep the European powers’ resolve not to use force hidden from the insurgents. September 1818, Second Memorandum on the approaching Conferences at Aix-la-Chapelle, FO 92/34, in: Britain (supra, n. 21), II, p. 55; 2 November 1818, Viscount Castlereagh to Earl Bathurst, FO 92/36, in: Britain (supra, n. 21), II, p. 57; 2 November 1818, Viscount Castlereagh to Earl Bathurst, FO 92/41, in: Britain (supra, n. 21), II, p. 65.


2710 July 1820, Sir Charles Stuart to Viscount Castlereagh, FO 27/229, in: Britain (supra, n. 21), II, p. 103; 24 July 1820, Sir Charles Stuart to Viscount Castlereagh, FO 27/229, in: Britain (supra, n. 21), II, p. 105.


28See the great number of pamphlets supporting recognition: J. Henderson, A series of observations submitted to the right honorable Vice President of the Board of Trade on the expediency of Great Britain entering into commercial regulations with the South American states accompanied by brief commercial notices of the five republics, London 1822; Anon., Reflections on the state of the late Spanish Americas and on the expediency of the recognition of their independence by Great Britain, London 1823.


29W.W. Kaufmann, British policy and the independence of Latin America, New Haven 1951, p. 142; Col. E.M. Lloyd, Canning and Spanish America, Transactions of the Royal Historical Society, 18 (1904), p. 86.


3012 October 1823, Memorandum of a Conference between the Prince de Polignac and Mr. Canning, begun Thursday, October 9th and concluded Sunday, October 12th 1823, in: Britain (supra, n. 21), II, p. 115; A.G. Stapleton, The political life of the right honourable George Canning, London 1831, II, p. 21.


31Lloyd, Canning (supra, n. 29), p. 78.


32Crawford, Creation of states (supra, n. 3), p. 12.


33Alexandrowicz, Recognition in fieri (supra, n. 12), p. 176.


34Alexandrowicz, Recognition in fieri (supra, n. 12), p. 176.


35Italics in orignal. J.L. Klüber, Droit des gens modernes de l’Europe, Stuttgart 1819, p. 44.


36Alexandrowicz, Recognition in fieri (supra, n. 12), p. 188.


37Crawford, Creation of states (supra, n. 3), p. 12.


38 Infra, p. 298–302.


39Hereafter referred to as September memorandum.


4014 September 1822, Earl of Bathurst to the Duke of Wellington, including an extract from a Memorandum composed by Castlereagh, in: Britain (supra, n. 21), II, p. 71. Also in Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 284–288.


41 Infra, p. 297–298.


42Fabry, Recognizing states (supra, n. 1), p. 58.


4321 September 1822, Duke of Wellington to George Canning, FO 92/49, in: Britain (supra, n. 21), II, p. 72.


449 December 1822, Canning to Sir William A’Court, in: Britain (supra, n. 21), II, p. 401.


4522 February 1823, Robinson to Canning, in: C. Parry, Law officers’ opinions to the Foreign Office, Vol. 79, Manchester 1965.


46At the occasion of Canning’s refusal to receive M. Mariano de Egana as an accredited minister of the Government of Chile: 22 January 1825, Joseph Planta to Mariano de Egana, FO 16/4, in: Britain (supra, n. 21), i, p. 357.


4724 April 1824, George Canning to Sir Charles Bagot, FO 65/141, in: Britain (supra, n. 21), II, p. 300; 8 September 1817, Sir Charles Stuart to Viscount Castlereagh, FO 27/162, in: Britain (supra, n. 21), II, p. 94; September 1818, Second Memorandum on the approaching Conferences at Aix-la-Chapelle, FO 92/34, in: Britain (supra, n. 21), II, p. 56.


48See also Hillgruber, Aufnahme neuer Staaten (supra, n. 12), p. 11–12.


49Edward Gibbon, Mémoire justicatif publié par la cour de Londres en réponse à l’exposé des motifs de la conduite de la France, in: Nouvelles causes célèbres du droit des gens, ed. Karl von Martens, Paris 1843, i, p. 446.


50Edward Gibbon, Mémoire justicatif publié par la cour de Londres en réponse à l’exposé des motifs de la conduite de la France, in: Nouvelles causes célèbres du droit des gens, ed. Karl von Martens, Paris 1843, i, p. 448.


51Edward Gibbon, Mémoire justicatif publié par la cour de Londres en réponse à l’exposé des motifs de la conduite de la France, in: Nouvelles causes célèbres du droit des gens, ed. Karl von Martens, Paris 1843, i, p. 457.


52Edward Gibbon, Mémoire justicatif publié par la cour de Londres en réponse à l’exposé des motifs de la conduite de la France, in: Nouvelles causes célèbres du droit des gens, ed. Karl von Martens, Paris 1843, i, p. 456.


53The exception was the Netherlands, who recognized the United States on 22 April 1782. See Fabry, Recognizing states (supra, n. 1), p. 33–34.


54Hillgruber, Aufnahme neuer Staaten (supra, n. 12), p. 12.


558 December 1821, Foreign Office Memorandum, in: Some official correspondence of George Canning, ed. A.G. Stapleton, i, London 1887, p. 95.


56R. Phillimore, Commentaries upon international law, III, London 1855, p. 34.


5710 September 1813, Law Officers to Castlereagh, in: Parry, Law officers’ opinions (supra, n. 45), Vol. 78.


58, London 1838, IV, p. 140. This Order in Council was further prolonged on 31st May: British foreign and state papers 1816–1817, London 1838, IV, p. 731.


59June 3rd 1819, Hansard parliamentary debates; May 13th 1819, Hansard parliamentary debates; June 10th 1819, Hansard parliamentary debates; June 3rd 1819, Hansard parliamentary debates; June 21st 1819, Hansard parliamentary debates. See also D.A.G. Waddell, British neutrality and Spanish-American independence, The problem of foreign enlistment, Journal of Latin American studies, 19 (1987), p. 1–18.


60See for more information on the evolution of the idea of dynastic legitimacy in the context of recognition doctrine: Fabry, Recognizing states (supra, n. 1), p. 49–79.


61J. Bew, ‘From an umpire to a competitor’, Castlereagh, Canning and the issue of intervention in the wake of the Napoleonic wars, in: Humanitarian intervention, A history, ed. B. Simms [and] D.J.B. Trim, Cambridge 2011, p. 120.


62 Supra, p. 294–296.


6326 November 1822, Déclaration du Cabinet de France en réponse à celle du Cabinet Britannique du 24 Novembre, FO 92/52, in: Britain (supra, n. 21), II, p. 81.


6419 March 1825, Sir Henry Wellesley to George Canning, FO 7/187, in: Britain, II, p. 36.


65In quoting Metternich during one of Wellesley’s conversations with him: 17 January 1825, Sir Henry Wellesley to George Canning, FO 7/187, in: Britain (supra, n. 21), II, p. 35.


66, p. 297–298.


67Johann Christoph Wilhelm von Steck, Versuche über verschiedene Materien politischer und rechtlicher Kenntnisse, Berlin 1783, p. 55.


68Georg Friedrich von Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage, Göttingen 1789, i, p. 88.


69Georg Friedrich von Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage, Göttingen 1789, i, p. 89.


70Klüber, Droit des gens modernes (supra, n. 35), p. 44. See also T. von Schmalz, Das europäische Völkerrecht in acht Büchern, Berlin 1817, p. 37.


7130 November 1822, George Canning to Sir William A’Court, FO 172/258, in: Britain (supra, n. 21), II, 399; see also 9 December 1822, George Canning to Sir William A’Court, FO 172/258, in: Britain (supra, n. 21), II, p. 401.


7212 April 1824, Woodbine Parish to George Canning, FO 6/3, in: Britain (supra, n. 21), i, p. 108; 24 October 1824, Woodbine Parish to George Canning, FO 6/5, in: Britain (supra, n. 21), i, p. 119.


73Notes on a dispatch from Monsieur de Chateaubriand (26th January 1824) to the Prince de Polignac, FO 27/321, in: Britain (supra, n. 21), II, p. 139.


74 Supra, p. 297–298.


75 Supra, p. 294.


7615 November 1822, Canning’s memorandum to the Cabinet, FO 72/266, in: Britain (supra, n. 21), II, p. 393. Also in G. Canning, Official correspondence (supra, n. 55), p. 48.


7723 August 1824, George Canning to Woodbine Parish, FO 118/1, in: Britain (supra, n. 21), i, p. 114. See the same conditions with respect to Guatemala: 19 May 1828, Earl of Dudley to Charles Dashwood, FO 15/8, in: Britain (supra, n. 21), i, p. 339. With respect to Mexico: 10 October 1823, George Canning to Lionel Hervey, FO 50/3, in: Britain (supra, n. 21), i, p. 433.


7831 March 1824, George Canning to Sir William A’Court, FO 72/284, in: Britain (supra, n. 21), II, p. 421; F.L. Paxson, The independence of the South American republics, A study in recognition and foreign policy, Philadelphia 1903, p. 220–226.


79M. Craven, Statehood, self-determination, and recognition, in: International law, ed. M. Evans, 3rd ed., Oxford 2010, p. 226.


80There exists no in-depth study of the writings of Sir James Mackintosh. See for brief information: D. Armitage, Globalizing Jeremy Bentham, History of political thought, 32 (2011), p. 76–77.


81Sir James Mackintosh, A discourse on the study of the law of nature and nations, Introduction to a course of lectures on that science, to be commenced in Lincoln’s Inn Hall on Wednesday, Feb. 13, 1799, in pursuance of an order of the honourable society of Lincoln’s Inn, London 1799.


82J. Henderson, An address to the South Americans and Mexicans with a cursory review of some of the important events and traits of patriotism which have distinguished their respective revolutions, London 1822, p. 27.


8315 June 1824, Hansard parliamentary debates.


8423 June 1824, Hansard parliamentary debates.


85Notes on a dispatch from Monsieur de Chateaubriand [26th January 1824] to the Prince de Polignac, FO 27/321, in: Britain (supra, n. 21), II, p. 139.


8627 September 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 74.


876 February 1817, Robinson to Canning, in: Parry, Law officers’ opinions (supra, n. 45), Vol. 78.


8827 September 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 74. See also October 15 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 75, also in Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 356–358.


89See also 15 November 1822, Canning’s memorandum for the Cabinet, FO 72/266, in: Britain (supra, n. 21), II, p. 393.


9015 November 1822, Canning’s memorandum for the Cabinet, FO 72/266, in: Britain (supra n. 21), II, p. 393.


91Author’s italics. 25 March 1825, George Canning to the Chevalier de los Rios, FO 72/309, in: Britain (supra, n. 21), II, p. 438.


92Author’s italics. 18 October 1822, Duke of Wellington to George Canning, in: Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 385.


93Author’s italics. October 29 1822, George Canning to Field Marshal the Duke of Wellington, in: Despatches (supra, n. 88), i, p. 463.


94Original italics. October 29 1822, George Canning to Field Marshal the Duke of Wellington, ibidem.


95Paxson, Independence of the South American republics (supra, n. 78), p. 248.


96See for the intellectual context of Britain’s recognition: G. Paquette, The intellectual context of British diplomatic recognition of the South American republics, c. 1800–1830, Journal of Transatlantic studies, 2 (2004), p. 75–95.


97 Supra, n. 29, n. 84. See for a selection: The recent state papers concerning South America, Edinburgh Annual Register, 17 (January 1824), p. 18–28; The recent state papers concerning South America, George Blackwood’s Edinburgh Magazine, 15 (March 1824), p. 351–357.


98 Supra, n. 90. See for a selection: British and foreign state papers, Vol. XII, 1846, p. 909; Note addressed by Mr. Canning to the Chevalier de los Rios, Cobbett’s Weekly Register, 55 (July–September 1825), p. 562–571.


99See for Canning’s speeches: The speeches of the right honourable George Canning with a memoir of his life, ed. R. Therry, London 1828. See for Mackintosh’ speeches: Sir J. Mackintosh, Substance of the speech of Sir James Mackintosh in the House of Commons, June 15, 1824, on presenting a petition from the merchants of London for the recognition of the independent states established in the countries of America formerly subject to Spain, London 1824, and The miscellaneous works of the right honourable Sir James Mackintosh, ed. R.J. Mackintosh, Boston 1858. See other parliamentary speeches on South America: Foreign policy, Edinburgh Annual Register, 17 (1824), p. 16–34.


100H. Wheaton, Elements of international law, i, 1rst edn., London 1836, p. 96.


101Wheaton, Elements (supra, n. 100), p. 98.


102Wheaton (supra, n. 100), p. 153.


103Wheaton (supra, n. 100), p. 155.


104Wheaton, p. 57.


105See K. Blüntschli, Das moderne Völkerrecht der civilisirten Staten, Nördlingen 1878, p. 69; F.W. Gibbs, Recognition, A chapter from the history of the North American and South American states, London 1863, p. 3; E. Creasy, First platform of international law, London 1876, p. 679; F. De Martens, Traité de droit international, Paris 1886, i, p. 359.


106R. Phillimore, Commentaries upon international law, London 1855, II, p. 15.


107Phillimore, p. 17.


108Phillimore, p. 19.


109Italic in original, Phillimore, p. 19–20.


110W. Harcourt, Additional letters by Historicus on some questions of international law, London 1863, p. 5.


111Harcourt, Additional letters (supra, n. 110), p. 6.


112Harcourt, Additional letters (supra, n. 110), p. 6.


113See supra for Harcourt’s views on Spanish America.


114Italics in original. Harcourt, Additional letters (supra, n. 110), p. 4.


115Harcourt, p. 7.


116Harcourt, p. 12.


117Harcourt, p. 4.


118Gibbs, Recognition (supra, n. 105), p. 1.


119Gibbs, p. 5.


120Gibbs, p. 3.


121F. Saalfeld, Handbuch des positiven Völkerrechts, Tübingen 1833, p. 64.


122A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.


123A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.


124A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.


125H.B. Oppenheim, System des Völkerrechts, Stuttgart – Leipzig 1845, p. 203.


126T.J. Lawrence, The principles of international law, London 1895, p. 87.


127Blüntschli, Das moderne Völkerrecht (supra, n. 105), p. 72.


128W.E. Hall, A treatise on international law, 3rd edn., p. 90.


129Hall, p. 93; A. Rivier, Principes du droit des gens, Paris 1886, i, p. 58; L. Oppenheim, International law, A treatise, London 1905, i, p. 113.


130C. Calvo, Le droit international théorique et pratique, précédé d’un exposé historique des progrès de la science du droit des gens, 1888, i, p. 243; J. Kent, Kent’s commentaries on international law, 2nd ed., Cambridge 1878, p. 86.


131T. Twiss, The Law of nations considered as independent political communities, Oxford 1861, p. 19–20. Lauterpacht has claimed that the influence of the constitutive theory runs back to Hegel’s Enzyklopädie der philophischen Wissenschaften, through Jellinek. While this may be true, none of the writers of the law of nations discussed here refer to it. See Lauterpacht, Recognition in international law (supra, n. 2), p. 38.


132Blüntschli, Das moderne Völkerrecht (supra, n. 105), p. 71.


133H. Bonfils, Manuel de droit international public, Paris 1898, p. 101; see also Rivier, Principes (supra, n. 129), i, p. 57; P. Pradier-Fodéré, Traité de droit international public, Paris 1885, i, p. 237.


134See also E. Creasy, First platform (supra, n. 105), p. 677; F. von Holtzendorff, Handbuch des Völkerrechts, Hamburg 1887, p. 24; De Martens, Traité de droit international (supra, n. 105), p. 358.


135E. Nys, La doctrine de la reconnaissance des états, Les prétendues conditions mises à la reconnaissance, Les cas historiques: l’Etat indépendant du Congo, Revue de droit international et de droit comparé, 35 (1903), p. 293.


136Oppenheim, International law (supra, n. 129), p. 109.


137See also Anghie, Imperialism (supra, n. 10), p. 75.


138See also J. Lorimer, La doctrine de la reconnaissance fondement du droit international, Revue de droit international et de droit comparé, 16 (1884), p. 335.


139J. Lorimer, Institutes of the law of nations, A treatise of the jural relations of separate political communities, Edinburgh 1883, p. 104–105.


140Lorimer, Institutes (supra, n. 139), p. 105.


141Lorimer (supra, n. 139), p. 152.


142The only mention of Canning’s recognition of the Spanish American states by Lorimer is in the context of the difficulties in ascertaining the boundaries of new states. Lorimer, Institutes (supra, n. 139), p. 182.


143Nys, La doctrine de la reconnaissance (supra, n. 135), p. 294.


144Calvo, Le droit international théorique et pratique (supra, n. 130), p. 243.


14512 December 1826, Hansard parliamentary debates.


146Ryngaert and Sobrie, Recognition of states (supra, n. 2), p. 469.

  • 2

    H. Lauterpacht, Recognition in international law, Cambridge 1948, p. 26–37; C. Ryngaert and S. Sobrie, Recognition of states: international law or realpolitik?, The practice of recognition in the wake of Kosovo, South Ossetia, and Abkhazia, Leiden journal of international law, 24 (2011), p. 468.

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  • 5

    Grant, Recognition of states (supra, n. 4), p. 4–12.

  • 7

    G. Boas, Public international law: contemporary principles and perspectives, Cheltenham 2012, p. 172; Grant, Recognition of states (supra, n. 4), p. 1–18; H. Kelsen, Recognition in international law, Theoretical observations, The American journal of international law, 35 (1941), p. 605–617.

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  • 8

    Lauterpacht, Recognition in international law (supra, n. 2), p. 26–37.

  • 9

    Crawford, Creation of states (supra, n. 3), p. 12.

  • 16

    Fabry, Recognizing (supra, n. 1), p. 272.

  • 21

    24 September 1819, Viscount Castlereagh to Lord Stewart, FO 7/142, in: Britain and the independence of Latin America 1812–1830, Select documents from the foreign office archives, C.K. Webster, iII, Oxford 1938, II, p. 5; J. Rydjord, British mediation between Spain and her colonies, The Spanish American historical review, 21 (1941), p. 30.

  • 23

    24 December 1812, Viscount Strangford to Viscount Castlereagh, FO 63/125, in: Britain (supra, n. 21), i, p. 84.

  • 24

    1 April 1812, Viscount Castlereagh to Sir Henry Wellesley, FO 72/127, in: Britain (supra, n. 21), II, p. 312.

  • 27

    10 July 1820, Sir Charles Stuart to Viscount Castlereagh, FO 27/229, in: Britain (supra, n. 21), II, p. 103; 24 July 1820, Sir Charles Stuart to Viscount Castlereagh, FO 27/229, in: Britain (supra, n. 21), II, p. 105.

  • 29

    W.W. Kaufmann, British policy and the independence of Latin America, New Haven 1951, p. 142; Col. E.M. Lloyd, Canning and Spanish America, Transactions of the Royal Historical Society, 18 (1904), p. 86.

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  • 30

    12 October 1823, Memorandum of a Conference between the Prince de Polignac and Mr. Canning, begun Thursday, October 9th and concluded Sunday, October 12th 1823, in: Britain (supra, n. 21), II, p. 115; A.G. Stapleton, The political life of the right honourable George Canning, London 1831, II, p. 21.

  • 31

    Lloyd, Canning (supra, n. 29), p. 78.

  • 32

    Crawford, Creation of states (supra, n. 3), p. 12.

  • 35

    Italics in orignal. J.L. Klüber, Droit des gens modernes de l’Europe, Stuttgart 1819, p. 44.

  • 37

    Crawford, Creation of states (supra, n. 3), p. 12.

  • 40

    14 September 1822, Earl of Bathurst to the Duke of Wellington, including an extract from a Memorandum composed by Castlereagh, in: Britain (supra, n. 21), II, p. 71. Also in Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 284–288.

  • 42

    Fabry, Recognizing states (supra, n. 1), p. 58.

  • 43

    21 September 1822, Duke of Wellington to George Canning, FO 92/49, in: Britain (supra, n. 21), II, p. 72.

  • 44

    9 December 1822, Canning to Sir William A’Court, in: Britain (supra, n. 21), II, p. 401.

  • 45

    22 February 1823, Robinson to Canning, in: C. Parry, Law officers’ opinions to the Foreign Office, Vol. 79, Manchester 1965.

  • 47

    24 April 1824, George Canning to Sir Charles Bagot, FO 65/141, in: Britain (supra, n. 21), II, p. 300; 8 September 1817, Sir Charles Stuart to Viscount Castlereagh, FO 27/162, in: Britain (supra, n. 21), II, p. 94; September 1818, Second Memorandum on the approaching Conferences at Aix-la-Chapelle, FO 92/34, in: Britain (supra, n. 21), II, p. 56.

  • 48

    See also Hillgruber, Aufnahme neuer Staaten (supra, n. 12), p. 11–12.

  • 54

    Hillgruber, Aufnahme neuer Staaten (supra, n. 12), p. 12.

  • 55

    8 December 1821, Foreign Office Memorandum, in: Some official correspondence of George Canning, ed. A.G. Stapleton, i, London 1887, p. 95.

  • 57

    10 September 1813, Law Officers to Castlereagh, in: Parry, Law officers’ opinions (supra, n. 45), Vol. 78.

  • 58

    , London 1838, IV, p. 140. This Order in Council was further prolonged on 31st May: British foreign and state papers 1816–1817, London 1838, IV, p. 731.

  • 59

    June 3rd 1819, Hansard parliamentary debates; May 13th 1819, Hansard parliamentary debates; June 10th 1819, Hansard parliamentary debates; June 3rd 1819, Hansard parliamentary debates; June 21st 1819, Hansard parliamentary debates. See also D.A.G. Waddell, British neutrality and Spanish-American independence, The problem of foreign enlistment, Journal of Latin American studies, 19 (1987), p. 1–18.

  • 63

    26 November 1822, Déclaration du Cabinet de France en réponse à celle du Cabinet Britannique du 24 Novembre, FO 92/52, in: Britain (supra, n. 21), II, p. 81.

  • 64

    19 March 1825, Sir Henry Wellesley to George Canning, FO 7/187, in: Britain, II, p. 36.

  • 67

    Johann Christoph Wilhelm von Steck, Versuche über verschiedene Materien politischer und rechtlicher Kenntnisse, Berlin 1783, p. 55.

  • 70

    Klüber, Droit des gens modernes (supra, n. 35), p. 44. See also T. von Schmalz, Das europäische Völkerrecht in acht Büchern, Berlin 1817, p. 37.

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  • 71

    30 November 1822, George Canning to Sir William A’Court, FO 172/258, in: Britain (supra, n. 21), II, 399; see also 9 December 1822, George Canning to Sir William A’Court, FO 172/258, in: Britain (supra, n. 21), II, p. 401.

  • 72

    12 April 1824, Woodbine Parish to George Canning, FO 6/3, in: Britain (supra, n. 21), i, p. 108; 24 October 1824, Woodbine Parish to George Canning, FO 6/5, in: Britain (supra, n. 21), i, p. 119.

  • 76

    15 November 1822, Canning’s memorandum to the Cabinet, FO 72/266, in: Britain (supra, n. 21), II, p. 393. Also in G. Canning, Official correspondence (supra, n. 55), p. 48.

  • 77

    23 August 1824, George Canning to Woodbine Parish, FO 118/1, in: Britain (supra, n. 21), i, p. 114. See the same conditions with respect to Guatemala: 19 May 1828, Earl of Dudley to Charles Dashwood, FO 15/8, in: Britain (supra, n. 21), i, p. 339. With respect to Mexico: 10 October 1823, George Canning to Lionel Hervey, FO 50/3, in: Britain (supra, n. 21), i, p. 433.

  • 78

    31 March 1824, George Canning to Sir William A’Court, FO 72/284, in: Britain (supra, n. 21), II, p. 421; F.L. Paxson, The independence of the South American republics, A study in recognition and foreign policy, Philadelphia 1903, p. 220–226.

  • 82

    J. Henderson, An address to the South Americans and Mexicans with a cursory review of some of the important events and traits of patriotism which have distinguished their respective revolutions, London 1822, p. 27.

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  • 83

    15 June 1824, Hansard parliamentary debates.

  • 84

    23 June 1824, Hansard parliamentary debates.

  • 86

    27 September 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 74.

  • 87

    6 February 1817, Robinson to Canning, in: Parry, Law officers’ opinions (supra, n. 45), Vol. 78.

  • 88

    27 September 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 74. See also October 15 1822, George Canning to the Duke of Wellington, FO 92/48, in: Britain (supra, n. 21), II, p. 75, also in Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 356–358.

  • 89

    See also 15 November 1822, Canning’s memorandum for the Cabinet, FO 72/266, in: Britain (supra, n. 21), II, p. 393.

  • 90

    15 November 1822, Canning’s memorandum for the Cabinet, FO 72/266, in: Britain (supra n. 21), II, p. 393.

  • 91

    Author’s italics. 25 March 1825, George Canning to the Chevalier de los Rios, FO 72/309, in: Britain (supra, n. 21), II, p. 438.

  • 92

    Author’s italics. 18 October 1822, Duke of Wellington to George Canning, in: Despatches, correspondence, and memoranda of Field Marshal Arthur, Duke of Wellington, ed. by his son K.G. Duke of Wellington, London 1834, i, p. 385.

  • 93

    Author’s italics. October 29 1822, George Canning to Field Marshal the Duke of Wellington, in: Despatches (supra, n. 88), i, p. 463.

  • 94

    Original italics. October 29 1822, George Canning to Field Marshal the Duke of Wellington, ibidem.

  • 95

    Paxson, Independence of the South American republics (supra, n. 78), p. 248.

  • 101

    Wheaton, Elements (supra, n. 100), p. 98.

  • 104

    Wheaton, p. 57.

  • 107

    Phillimore, p. 17.

  • 108

    Phillimore, p. 19.

  • 109

    Italic in original, Phillimore, p. 19–20.

  • 110

    W. Harcourt, Additional letters by Historicus on some questions of international law, London 1863, p. 5.

  • 111

    Harcourt, Additional letters (supra, n. 110), p. 6.

  • 112

    Harcourt, Additional letters (supra, n. 110), p. 6.

  • 114

    Italics in original. Harcourt, Additional letters (supra, n. 110), p. 4.

  • 115

    Harcourt, p. 7.

  • 116

    Harcourt, p. 12.

  • 117

    Harcourt, p. 4.

  • 118

    Gibbs, Recognition (supra, n. 105), p. 1.

  • 119

    Gibbs, p. 5.

  • 120

    Gibbs, p. 3.

  • 122

    A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.

  • 123

    A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.

  • 124

    A.W. Heffter, Das europäische Völkerrecht der Gegenwart, Berlin 1844, p. 39.

  • 126

    T.J. Lawrence, The principles of international law, London 1895, p. 87.

  • 127

    Blüntschli, Das moderne Völkerrecht (supra, n. 105), p. 72.

  • 129

    Hall, p. 93; A. Rivier, Principes du droit des gens, Paris 1886, i, p. 58; L. Oppenheim, International law, A treatise, London 1905, i, p. 113.

  • 131

    T. Twiss, The Law of nations considered as independent political communities, Oxford 1861, p. 19–20. Lauterpacht has claimed that the influence of the constitutive theory runs back to Hegel’s Enzyklopädie der philophischen Wissenschaften, through Jellinek. While this may be true, none of the writers of the law of nations discussed here refer to it. See Lauterpacht, Recognition in international law (supra, n. 2), p. 38.

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  • 132

    Blüntschli, Das moderne Völkerrecht (supra, n. 105), p. 71.

  • 133

    H. Bonfils, Manuel de droit international public, Paris 1898, p. 101; see also Rivier, Principes (supra, n. 129), i, p. 57; P. Pradier-Fodéré, Traité de droit international public, Paris 1885, i, p. 237.

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  • 134

    See also E. Creasy, First platform (supra, n. 105), p. 677; F. von Holtzendorff, Handbuch des Völkerrechts, Hamburg 1887, p. 24; De Martens, Traité de droit international (supra, n. 105), p. 358.

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  • 136

    Oppenheim, International law (supra, n. 129), p. 109.

  • 137

    See also Anghie, Imperialism (supra, n. 10), p. 75.

  • 140

    Lorimer, Institutes (supra, n. 139), p. 105.

  • 143

    Nys, La doctrine de la reconnaissance (supra, n. 135), p. 294.

  • 144

    Calvo, Le droit international théorique et pratique (supra, n. 130), p. 243.

  • 145

    12 December 1826, Hansard parliamentary debates.

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