对 René-Jean Dupuy 反应："International law" – an apology of military force and ethnic cleansing?

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Otto Kolbl 

René-Jean Dupuy (1918-1997, see the article about him on Wikipedia), is a well-known expert in the field of international law. In his book Le droit international (International law) in the collection Que sais-je (Presses Universitaires de France, 2004), he defends a more than problematic concept of the recognition of a new state. In his "logical" argumentation, he even legitimizes the invasion of Manchuria by Japan in 1931.

M. Dupuy starts with explaining that each new state must first "exist in reality" (p. 42). Other authors call this "de facto independence". It is quite easy to understand that it is difficult to recognize a state which exists only on paper.

But what is the meaning of this act by which the "international community", i.e. the different governments in the world, recognize this new entity? According to Dupuy, there are two possible interpretations. The first one consists in considering this act as constituting the new state and as having as a consequence that the new state gets its legal validation (p. 43); this interpretation is rejected by the author:

Théorie illogique car on voit mal comment [le nouvel Etat] pourrait, sans existence au regard du droit, conclure un traité dont l'objet serait sa reconnaissance. [p. 43].

This theory is illogical because I don't see how [the new state] could, without existing from the legal point of view, sign a treaty about its own recognition. [p. 43].

What the author calls the "legal validation" here is what other authors call "de jure independence", i.e. the fact that a state is considered to benefit the same privileges and obligations than other states. For Dupuy, de jure independence derives directly from de facto independence, even if some governments refuse to recognize it, at least for some time:

Chaque Etat est libre d'apprécier différemment l'avènement d'un nouveau pouvoir, de décider ou de refuser de nouer avec lui des relations normales. […] D'où également pour certains Etats, insuffisamment convaincus de l'effectivité du phénomène, le recours au procédé dilatoire de la reconnaissance de fait, provisoire et imparfaite. [p. 44]

Each state is free to evaluate differently the coming into existence of a new government, and to decide or to refuse to take up normal relations with it. […] That is why some states, insufficiently convinced of the reality of the phenomenon, the use of the delaying procedure of de facto, temporary or imperfect recognition. [p. 44]

However, this refusal to recognize a new state is only a temporary phenomenon; the existence of the new entity imposes itself naturally:

Ainsi, encore que chaque Etat apprécie librement l'effectivité [du nouvel Etat], celle-ci, avec la durée (variable selon les conjonctures), finit par s'imposer et à faire au nouveau venu sa place dans la société des Etats. Par cette seule qualité d'Etat, le voici souverain. [p. 46].

Therefore, even if each state appreciates freely the actual existence [of the new state], the latter, as time goes by (a time which varies according to the context), will impose itself and give the newcomer its place among the society of states. Through its mere quality of state, it has become sovereign. [p. 46]

But what happens if a new state was born under circumstances which the international community considers to be contrary to some of its fundamental values? Dupuy mentions this case, with an example which illustrates perfectly the problematic aspects of his theoretical position:

Les Etats-Unis ont ainsi affirmé en 1932, lors de la constitution de l'Etat du Manchoukouo par le Japon, la doctrine de Stimson posant le principe de la non-reconnaissance des situations de fait contraires au pacte de renonciation à la guerre (dit Pacte Briand-Kellog), de 1928. Cette formule n'a pu s'imposer. Un Etat ne peut imposer la projection de sa propre conception de la légitimité sur le reste du monde, à moins de prétendre à l'Empire mondial. [p. 45]

For instance, in 1932 at the time of the creation of the State of Manchuria by Japan, the USA reaffirmed the Stimson doctrine which is based on the principle that actual situations contrary to the pact renouncing war (Briand-Kellog-Pact) from 1928 should not be recognized. This doctrine has not been able to establish itself. A state can not project its own concept of legitimacy on the rest of the world, unless it states a claim to World Empire. [p. 45]

Dupuy seem not to be aware of the consequences of what he writes. Recognizing a state implies recognizing a certain number of privileges, among others the protection against aggression by another state. If a state has been created by the use of military force by another state in a way which definitely violates international law, should it be automatically protected against any new military intervention, even against military action intended to restore the status quo ante?

If we apply this theory to Europe, everybody will immediately realize that it is totally unacceptable. Nobody would claim that after the Nazi aggression against Poland in September 1939, since this state did not exist any more, its disappearance should have been accepted and German and Soviet control over its territory should have been recognized  In the same way as the invasion of Poland was the beginning of WWII operations in Europe, the invasion of Manchuria is considered to be the start of this same war in Asia.

Still now, the Chinese are grateful to the US that they did not accept the Japanese aggression. Even if the American government did not officially declare war on Japan, it sent an important military aid to China, including fighter aircraft with pilots, all of them "voluntary", outside the official military hierarchy. Qualifying this attitude as "claim to World Empire" shows a total lack of knowledge of the situation, which can only make all the Chinese who know a little bit about the history of their country furious.

The case of Manchuria is not an isolated case. In World history, there have been many cases of aggression by force which the international community as a whole or part of it has rejected; this was the precondition for many of these aggressions to be reversed later on. But there were also cases where "states" were born without any violence, but the international community has still refused to recognize them for good reasons.

The most telling example are the "Bantustan", created by South Africa in the 1970ies. The apartheid regime became more and more difficult to justify, therefore the idea was to regroup as many people of African origin in some delimited territories and to grant them independence.

Since these new countries would have had no economic basis allowing them to feed their population, their citizens would have had to look for bad paid jobs in South Africa, but the government of that country would have been freed of any responsibility for their social or civic rights.

Obviously, that's what you would call "ethnic cleansing": many people were deported by force to their new "home country". Nevertheless, the traditional leaders of the communities living on these territories were keen to slip into their new role of heads of state.

Within the international community, nobody could be fooled: not a single country (except for Namibia, under strong South-African influence) recognized the new states, even though they were born as the result of a peaceful agreement between the country their territory was part of before and the former local leaders who had become the "legitimate governments" of the new states. The ANC, at that time a severely repressed opposition movement, had appealed to the international community not to recognize them. After Nelson Mandela came to power, he reintegrated them into South Africa, even though in some cases he had to face stiff opposition from their new leaders.

This clearly shows that in some cases, the international community uses its right to recognize or not recognize one of its "new members", without considering its "effective existence". This is absolutely necessary in order to avoid gross aberrations of international law. I don't think that Dupuy actually wanted to legitimize any state which is born out of military aggression or out of a clear will to ethnic cleansing. However, I would like to point out that he was obviously aware of the fact that Manchuria had been created neither in a peaceful way nor through the will of its population, but through military force by Japan.

Nonetheless, this title of the collection Que sais-je has been reedited several times since 1963 (!) without anybody noticing the absurd consequences of the ideas it defends. The books of this collection have got a particular significance since they are destined to be a first introduction to a subject for young people who haven't got the ability to critically evaluate the information they can find there yet. They will tend to believe a well-known specialist when he says that no matter how a new state is born, it should be recognized without any moral considerations, and that in particular the Japanese aggression against China should have been accepted without opposing any resistance. This gross neglect of the editorial process at the Presses Universitaires de France is all the more regrettable.