Sovereignty: International Law

HL Deb 15 February 1984 vol 448 cc317-46

7.15 p.m.

Lord Paget of Northampton rose to ask Her Majesty's Government whether they will make a statement on rules of international law applicable to the granting and withdrawal of recognition of sovereignty; in the obligations under international law required of a government accepting recognition; and whether in their opinion such rules require reconsideration.

The noble Lord said: My Lords, I beg to ask the Question standing in my name on the Order Paper. I would immediately like to thank those who have been good enough to put their names on the list to join in this debate. If I may, I say a special word of gratitude to the noble Lord, Lord Home, who was for a considerable number of years one of our best and most successful Foreign Secretaries; and I think upon this subject there are very few people in either party who would reject his advice with comfort.

The Question concerns how and on what terms we should accept new entries to the family of nations. That was once treated as a great question, but today it seems to have been somewhat downgraded. In the 18th century, the concert of Christian States, then numbering perhaps a score, not much more, formed an informal club, and that club gave us the diplomatic system and also assumed the responsibility for world order. Spheres of influence arose; they were not precisely defined, but they were recognised and acknowledged, and they worked. America had the Monroe system; we took charge of East of Suez, the French the Barbary Coast and North Africa; and Russia more or less bossed Central Asia. And each of us accepted that order. It worked. Later, the Ottoman Empire and the Japanese Empire were accepted more or less as country members of the club. But the real authority which looked after order in the world during that time was this concert of the Christian nations. Small states knew their places; they observed their national and private obligations. When they got into debt the powers put in a receiver. Egypt's treasury still works the reforms provided for them by Lord Cromer acting as the receiver of their creditors.

Lord Lever of Manchester

Not the present one, my Lords.

Lord Paget of Northampton

No; an earlier one. Candidates to join this society of nations had their credentials looked at pretty carefully and terms were often imposed. Indeed, when the Turkish Empire broke up and the Balkan States emerged, a condition of recognition was that they should get themselves kings. Monarchy was regarded as the best way of getting durability, sequence, order. I do not say how well that worked, but it did a least work rather better than the presidents who came forward with the dissolution of other empires. Indeed, the terms were different then; circumstances were different. But only recently has it become the case that for entry into this society of nations there were no terms at all. People have joined regardless.

I believe that on the whole the powers maintained world order pretty effectively, certainly very much more effectively than the United Nations have. The world was a far safer place both for the state and for the individual. Indeed, the United Nations have really been the trouble here. The idea was that the victorious powers, united in peace as they had been in war, would keep world order, with possibly a United Nations force, which they operated through the Security Council.

Very unfortunately, the super powers fell out. Both set about ridding themselves of alternative authorities within their areas. The Russians annexed everything east of the Elbe: the Americans produced an anti-colonialism which destroyed the power base of Britain and France and led to a clutter of new states, most of them wholly unfit to carry out their responsibilities within the law of nations. They arrived, mostly, with constitutions which had been granted to politicians who had been trained, if that be the right word, in the constitutional law and customs of a colonial state.

Neither the politicians nor the constitutions lasted long. I do not think a single constitution survived. The politicians were chased out by men who had recognised that power came from the barrel of a gun. They were chased out, mostly, murderously; so what I have described as the assassin state arose. I have defined the assassin state as the state founded on violence, using violence with a succession based much as was the case in the Kingdom of Eli in The Golden Bough—the credential being that the man who murdered the last one succeeded to his office.

That is what has been happening. At the moment, over half the United Nations consists of assassin states. Indeed, it would often seem that the only surviving principle of the United Nations is that the white man is always wrong. It is the blacks who are suffering. The whites, on whose skill and generosity the blacks have depended, are getting tired—particularly the United States of America. The system of sponsorship is on its way out. I do not know how these new states will do without it.

Membership of the United Nations was not intended to be automatic. The rules provide that a new member requires a two-thirds majority and is open to veto. But for some reason vetoes are never exercised, and entry and credentials do not ever seem to have been debated. They may have been, but only on very rare occasions, if at all. In practice, acceptance by the United Nations seemed to be automatic. Coup followed coup. I think one of the Francophone colonies in Africa has had 10 coups with 10 successive unlawful and revolutionary spokesmen moving into a seat in the United Nations. Nigeria has had five. Automatic acceptance in this way by the United Nations of ragamuffin governments undermined the old principle of recognition.

What were we to do? If we recognised them, that tended to sound like approval, and that was the last thing we wanted to give to these new coup governments. But if one did not recognise, what could one do about it? The chap had his seat in the United Nations, so what was to be done? As far as we were concerned, we decided to abdicate our right to withdraw recognition. This was a curious thing. We abdicated our right and decided just to carry on as if the transfer had not happened. We did this, on what one would have thought was a rather drastic and fundamental change, by a Written Answer to a planted Question given in this House. I have a feeling of great admiration that only the noble Lord, Lord Carrington, could ever have got away with that. He did so in April, 1980. There the position stands at the moment.

I do not think it has been a success. It has encouraged the coup system. Thicker and faster new governments come. Less and less is the law regarded. Order has been breaking down, not only at the top level but domestically. Everywhere in the crime statistics the multiple varies between four and ten. It is getting to be a more and more disorderly world.

Then came Grenada. After, I believe, over 100 accepted coups President Reagan—may his shadow never grow less—at last intervened. The assassins were arrested, to the deep gratitude of almost all the people of Grenada. But the forces of disorder rallied the United Nations and the Americans were summoned to the Security Council to answer to the charge of aggression. I think that that, on the whole, gave us a chance. We were in a position to put the Americans under an obligation, if we had defended them stoutly at the United Nations. But we did just the opposite. What was the result? The Commonwealth despised us for our impotence. The United States was outraged by our ingratitude. After all, they had supported us in similar circumstances in the Falklands. It is not unnatural that they should now be twisting our tail in the Argentine. When one looks at that performance, one must admit that our Government are not very good at foreign affairs.

What can we do now? The fundamental question is between order and disorder, and coups equal disorder. We do not have coups in this country—at least, not since 1685. No-one is going to accept an assassin because he has shot Mrs. Thatcher and taken over the BBC. They are accepted when that sort of thing happens in Africa, but we have a deep-rooted sense of legality which makes us coup-proof. That applies to nearly all Europe—it even applies to Italy. We do not have coups here. Coup countries are not properly established states. They do not respect their own constitutions because they have just overthrown them. They certainly do not respect the constitutions of others, or international laws.

There are certain propositions which I believe we ought to consider. Firstly, we should recognise that coup governments cannot do without recognition. It does not need to be universal recognition, but they have to have the recognition of at least most of their neighbours and at least some of their trading associates. Without recognition they are, in international law, ungoverned territory in which the civilised states may take any action they deem necessary to guard their interests. They have no access to international finance. They are substantially unable to trade. An unrecognised state from which essential recognition is withdrawn is really not in a position to carry on government. We should realise that as part of our power. The power to withhold recognition possesses formidable sanctions and it is not the kind of power to be thrown away in an Answer to a Written Question.

Thirdly, we know which countries are liable to coups. Most of them have already had several. We should discuss each as a contingency with our trading and defence partners and when the coup comes we should be ready to act in concert and set out our terms. Nigeria is the latest; it is her fifth coup and fourth general. She has had an oil bonanza but I understand that she is broke. The story has always been the same—corruption, nepotism; the general is going to put it right. Within a year or so corruption and nepotism are back and the brutal violence has increased. It seems to be starting that way. On the news this morning we heard that 35 members of a television crew are to be whipped for being late. Is this the kind of government that we wish to recognise unconditionally? Is it not time we put in some conditions? I think my noble friend Lord Lever will have something more to say on that.

The great issue today has ceased to be communism and democracy. The great issue is order and disorder. On the question of order, quite often we shall find the Russians on our side. They need order, too. I should like to mention Afghanistan and our performance at the Olympic Games. Afghanistan is not our friend. I do not think she could be anybody's friend except upon the basis that mine enemy's enemy is my friend. She has an appalling record. Raiding her peaceful neighbours has been a national sport. I think her only known export is dope. When we were on the receiving end we intervened twice. The only thing I think we can say for ouselves is that we were a jolly sight better at intervening than the Russians, but the morals of it are much the same.

Surely we should be better advised to keep our nose out of places where the Russians are seeking to maintain order and to expect the Russians to keep out of areas where we try to see some order. I refer particularly to Africa. The Russians are in Africa for sheer mischief. They are encouraged in that mischief when we make fools of ourselves over an issue like Afghanistan. It is the wrong issue on which to quarrel. Let us look to this important question of world order and see what we can do about it.

7.34 p.m.

Lord Home of the Hirsel

My Lords, I am grateful to the noble Lord, Lord Paget of Northampton, for the kind words he directed towards me at the start of what he had to say. I would return the compliment by saying that, although he is not the most conventional of politicians, I have enjoyed him thoroughly all my life, in both Houses of Parliament. During the whole of a long political life I have noticed that the noble Lord is always impatient of unreality and pretence. He put down his Question because he felt the unreality of independent small countries which have none of the traditional attributes—economic, military or political —to sustain that status. Then there is the pretence —such countries do exist and I think they will be recognised for quite a long time ahead—that there is some valid code of international law to which these countries must subscribe and on which they should rely for their protection. I have a good deal of sympathy with his approach, for to connive at pretence in international affairs can be very dangerous.

My Lords, I understand our rules. An Unstarred Question is designed to elicit answers to specific points. In this case, we are concerned with the obligations, if any, involved in the granting and the reception of sovereignty—obligations which may derive from international law. The noble Lord has referred to the situation where, in the time of emperors and kings, ordinary citizens might not have been able to define sovereignty but knew it when they met it, and doubts were removed by power. The confusion arose later because of the coincidence of the decolonisation of empires and the simultaneous attempts through the Charter of the United Nations to frame a code of international behaviour for general application.

In this context the noble Lord asks whether the international rules need changing. I am no international lawyer but I should like to ask if there are any rules in international law which affect the donor of sovereignty and the recipient of sovereignty. It fell to my lot to introduce Nigeria into the United Nations. But well before that Britain had transferred and Nigeria had accepted sovereignty without reference to any other authority and without any conditions or obligations attached. All that was over and done with before the United Nations or the International Court came into the picture at all. The conclusion I draw on this somewhat narrow point of sovereignty, although it is an important one, is that in all the other colonial cases none of the new countries—it is as true of Australia as it is of Grenada—compromised their sovereignty when they became members of the United Nations.

That is why I argued in the case of the Grenada incident that there is no foundation in international law from which to condemn Grenada for exercising her sovereign right to seek help against subversion and take-over, and no reason to condemn the United States for exercising her sovereignty by deciding to come to the rescue of that small sovereign territory. That is not an academic matter. For a small country to rely on a code of law in which there is no reality could he a trap which could cost it its independence and its sovereignty. That is why at the time I described international law in this context as immature and as not applying in a case such as that affecting Grenada.

Within recent years, of course, some sovereign powers have voluntarily qualified their sovereignty. There is no need to look further afield than the European Economic Community or the NATO Alliance. Those who are also party to the nonintervention clause in the United Nations Charter have voluntarily accepted a fresh obligation. But I confess that I can see nothing in international law to restrain a sovereign territory from defending itself or from seeking help from another country in doing so.

I hope that over the years there will come to be a more effective international code and that the International Court of Justice will be able to extend its jurisdiction. But meanwhile I do not want to see small countries beguiled into a false sense of security by the pretence that there is an operative code on which they can rely for protection. As I see it, there is not, and to say that there is is to mislead.

I do not want to be drawn into the question of recognition because I know that my noble friend Lord Carrington made a statement on that not long ago. There will be these small countries in the years to come, and it is important to them that they should know their rights in the international field, because as long as they exist they are entitled to feel that they can organise their own security.

I do not envy my noble friend Lady Young answering the debate. International law is a very complicated matter, and I am no authority whatever on it, but I among others shall be very interested in what she has to say, because it is not an academic matter; it could be a matter of life and death for some of the so-called sovereign territories.

7.41 p.m.

Lord Simon of Glaisdale

My Lords, it is a great privilege to follow the noble Lord who has just addressed your Lordships—not only for the reasons that were given by the noble Lord. Lord Paget—and I venture to take up the point on which he sat down; namely, that it is a matter of life and death. Today we stand in the direst peril. The world is divided ideologically more grievously than it was at the time of the ideological divisions that led to all the miseries of the Thirty Years War. Those ideologies are now armed with unexampled weapons of destruction and we have no method—no mature method, if I may take up the word that was used by the noble Lord, Lord Home—of resolving those differences.

But as the noble Lord, Lord Paget, reminded us, out of the anarchy, disorder and wretchedness of the Thirty Years War there evolved a rudimentary system, certainly—at any rate some system—of international law, which for nearly 200 years abated the rigours of violence. So this evening I would follow the noble Lord, Lord Home, in making a plea that our constant objective, even if we go step by step, should be towards evolving a detailed and firm code to govern international relations and institutions which can declare such a code and institutions which can enforce it. That means. I think, that side by side with disarmament—to which the Government are committed, rightly, I think, on a step-by-step basis—there should be the arming of certain international forces.

The noble Lord, Lord Paget, started by discussing recognition. I should prefer, if I may, to start by discussing sovereignty. The noble Lord, Lord Home, said that we recognise a sovereign state, but it is in fact quite easy of definition. It is a state which does not recognise, or indeed is not subject to, any superior of its own sort. Of course, it can limit its individual action by treaty as we, a sovereign state, have limited ours by the Treaty of Rome. It can enter an international organisation which limits its independence, just as we have entered the United Nations. But there is all the difference between a sovereign state and, say, a colony, or states such as, say, the Ukraine or Byelorussia, which are members of the United Nations but are not recognised as sovereigns because they have not adequate and proper control over their own international relations.

The noble Lord, Lord Paget, was inclined to suggest that sovereignty should not be recognised, which I take it to mean should not exist, in small, weak states. The existence of small, weak states is a danger in a world which has no system of adequate international law because there are invitations to proceed to change international relations by force, or threat of force.

Nevertheless, one should remember that there are many ancient small states which have enjoyed sovereignty. There is, for example, Luxembourg, and I suggest that it is contrary to every principle, as well as to international decency, to deny sovereignty to a state which otherwise meets the requirements of international comity. After all, the first quality of sovereignty is the right to independence, the right to non-intervention. So the security of these small, unstable states depends on other countries observing the decencies, the proprieties and, one would hope, the legalities of international intercourse.

Of course, it is possible to differentiate by various degrees and limitations of recognition and indeed of sovereignty. But if a state meets the requirements—and they are almost entirely objective; in other words, there is a defined territory, there is an organised society which generally presupposes a government—then it is a sovereign state in international law, and it should be accorded recognition.

I should like to ask the noble Baroness some questions. The first is: do the British Government recognise any right of armed intervention even to anticipate what is feared as aggression? We denied that right to Italy over Ethiopia and we were supported by the League of Nations. The Nuremberg tribunal denied it to Germany over Norway and we were undoubtedly, I think, on the point of mining Norwegian territorial waters. Although the case could fall under more than one category, I think that it was internationally denied to this country, France and Israel over Suez. On the other hand, there is the example of the invasion of Dominica on the authority of the Association of American States in 1965, I think. There was the recent example of Grenada which the noble Lord has mentioned. I would be most grateful if the noble Baroness would state what is our view of that matter.

Then there is the question: is one entitled to intervene when a government has been usurped by unconstitutional means? The noble Lord, Lord Paget, referred to that. There have been many cases where we have not recognised the right to intervene. I suppose that Spain in the 1930s was the most patent example. It seems to me a very dangerous precedent if one sets oneself up, in the absence of any international body that can adjudicate dispassionately, to judge whether a usurping power is acting unconstitutionally. It has happened, as the noble Lord reminded us, so frequently with coups and revolutions.

I should also like to ask the noble Baroness this. How far does the right to sovereignty, which I equate with the right to independence and the right to nonintervention, fit in with human rights? I was engaged as counsel in the Russian brides case. There, the Soviet Government denied the right of Russian citizens who had married foreign subjects to go abroad to join their husbands. They defended that decision on the grounds that it was a purely domestic matter. But, when the matter was debated in the General Assembly—it never arose in this form in the English courts—it was resolved, I think I am right in saying, by pointing out that the Russian action conflicted with the human rights provisions of the United Nations and therefore could not be considered as a purely domestic matter. We have now got the universal declaration of human rights. I should be grateful if the noble Baroness could say how far sovereignty is limited by the obligations of human rights.

That brings me to my next question. The right to non-intervention, I think, clearly carries with it the right not to have the regime subverted. It is not only direct aggression that is illegal in international law as infringing sovereignty; it is also subversion. What about radio broadcasts and television broadcasts? What is the official view about them? There are certain extremes that, I suppose, are very easy—for example, the British Council sort of case, drawing attention to the significance of Shakespeare and Dickens. That would be one extreme. At the other extreme would be an incitement to rebellion. But what about a broadcast, say, which sets up the virtues of parliamentary government and implies thereby criticism of totalitarian regimes? Does that not again indicate the need for some body that could adjudicate impartially and dispassionately on the nature of the transmission? It also involves the question of jamming. I should be grateful to know what is the Government view on that. It has very generally been held that a state has a right to jam broadcasts as part of its right to self-defence. But surely that only applies if the broadcast is, in effect, an act of aggression, an act of intervention. It can hardly apply, one would have thought, in law or in the morals that lie behind the law, to what I have called the British Council type of broadcast.

I should like to deal briefly with recognition. I think, if I may say so, that the problem arises in other forms in addition to those that the noble Lord, Lord Paget, signified. It certainly occurs on the appearance of a new state. I suppose that Israel is the classic example. Oddly enough, the first to recognise Israel was the USSR. The United States withheld recognition on the ground that the territorial area had not been properly defined. It had not been properly defined because, to our shame, we abandoned the mandate without a proper political solution. But today it is defined. Yet the Arab states, apart from Egypt, I think I am right in saying—the noble Baroness will correct me if I am wrong—still withhold recognition.

The situation calling for recognition also arises when there is a change of government outside the constitutional form—the coup or the revolution, to which the noble Lord, Lord Paget, referred. It would be very useful to have a limited type of recognition that deals with that. Perhaps our own practice of de facto recognition as opposed to de jure recognition could be used to make the distinction, the recognition being limited to de facto not only until the political situation was sufficiently defined but also to mark our disapproval of unconstitutional action. The point is arguable because it could be said that that is a form of intervention. Nevertheless, there is a problem there that has to be faced.

The third situation involves territorial changes, especially those achieved by force and involving the extinction of states. The classic example is the extinction of the Baltic states after the last war. It is true that they were occupied by Russia, which set up puppet governments which invited the takeover. But that is a situation which calls for our Government to define their attitude to recognition.

I do not suggest that all of these situations from the past should be taken up, like taking up the drains because there is a nasty smell. However, I do suggest that a defined policy for the future is required and especially that we should not accede readily to the requirements of puppet governments. There is only one other point that I would venture to make and that is, that a premature recognition is an unjustifiable act, in my respectful submission, in international law because it involves intervention in the affairs of another state. Perhaps the noble Baroness will deal with that matter as well.

In the end recognition is a political judgment arising from a factual situation, the question about the factual situation merely being: is there a defined territory? Is there an organised community? And does that organised community accept a government? If that exists, then in international law there should be recognition in one form or another. The only question is whether our own distinction between de facto and de jure recognition is valuable and sufficient.

I ask the noble Baroness: do other states draw that distinction? We started drawing the distinction at the beginning of the last century. Certainly, the United States at that time, in view of its own revolutionary history, did not draw that distinction, but it seems to me of value in two circumstances. The first is pending the ascertainment of who is to come out on top. Earlier, I gave the example of the Spanish Civil War. In 1936 we accorded de facto recognition to the Nationalist Government as sovereign in the area under their control; not until 1938 did we accord de jure recognition of their sovereignty over the whole of Spain. That seems to me to be a valuable distinction. It also occurred after the Russian Revolution in 1917. I do not think that it was until 1921 that we accorded de facto recognition, and it was not until 1924 that we accorded de jure recognition. The withholding of the de jure recognition and perhaps the de facto recognition was perhaps justified because of the civil war. But it means a political judgment on a foreign régime which is liable to be a source of danger in international law.

I shall end as I began with a plea that it should be a constant object of British foreign policy to build up—it has been done a little, but not enough—a code of international law as detailed as possible, to be declared by respected and independent institutions of law, the courts, or arbitration boards. And there should be sufficient force—and even economic force will generally be sufficient, if united—to vindicate their decision.

8.6 p.m.

Lord Lever of Manchester

My Lords, I am sure that the whole House is deeply indebted to my noble friend Lord Paget for provoking this stimulating debate, and is deeply indebted to those who have followed him for their thoughts. I do not say that I endorse every single word of my noble friend's speech, but I remain once again deeply in his debt because of his fearless assault upon humbug and his passionate devotion to presenting reality for our consideration. I am even very strongly on his side, with deep regret and a good deal of trepidation, on the issue raised by the noble and learned Lord, Lord Simon of Glaisdale. I bow, of course, to the noble and learned Lord's views on all matters of law, national and international, but this is a political issue, as he finally came to recognise. My noble friend Lord Paget was right; the noble Lord, Lord Home, is wrong; and the noble and learned Lord, Lord Simon, is wrong in rebuking him for focusing the attention of the House upon the recognition of sovereignty rather than on the question of sovereignty itself.

If we venture into the area of who is sovereign, and our own views on that matter, we enter into the area that the noble Lord, Lord Simon, entered so copiously, of expressing wishful dreams about how other nations should behave and how, in due time, the world should constitute an authoritative court that will pronounce an equally authoritative code of ethics, and equally enforce that code of ethics. I share the noble and learned Lord's wishful dreams, but they are not an immediate and practical possibility, at any rate within the realm of a debate on an Unstarred Question. Therefore, my noble friend Lord Paget was right and very practical when he said that we should concern ourselves about the terms on which we give de jure recognition to other countries and other countries' sovereignties. The noble and learned Lord, Lord Simon, said that this depended upon a political judgment in the end, and not merely upon the objective facts.

If we are all satisfied that the local cannibal has taken charge of an area that we may call, for example, "Utopia" in the centre of Africa, and that by conventional tests his subjects, in so far as they have a not too copious admission to the expression of their individual opinions, appear to be coerced, bludgeoned and bewildered into accepting whoever the latest cannibal is who is in charge of their affairs, it does not oblige civilised governments to pronounce that they will confer diplomatic recognition upon that local cannibal. He has all the facts established in his favour except one, and that is that we do not think it will be an advantage to the comity of nations if we accord to him the full diplomatic recognition which gives him the right to set up an embassy in this country which can import arms in diplomatic bags and munition the local gangsters as required to murder the enemies of the cannibal, or of any of his family.

These are not just hypothetical possibilities. They are in fact the demeaning humiliations that have been experienced by all the great states of the world in the last decade. Therefore, I heartily applaud my noble friend Lord Paget in wanting to create something much simpler and much more readily achievable than that world bliss which is very properly the object of former Foreign Secretaries and of noble and learned Lords, but which is beyond the grasp of simple provincials like myself seeking to make a modest addition to the security of nations. We want the Government to tell us whether they have given any thought to creating a coherent code of conduct which they will expect from countries, not after but before they grant those countries full diplomatic recognition as sovereign states. To be honest, I doubt whether they have.

Again, one of the sad aspects for a simple provincial who unexpectedly arrives in government by a series of convolutions is that he is astonished to find that all the great questions which he thinks the powers-that-be will be reflecting upon, analysing and rendering into some sort of coherent order are never considered at all. I doubt whether anyone in the Government or in any department of government has given thought to what changes in our terms for recognising sovereignty—not knowing that it exists, but of recognising it—are required in the modern world. Or do we have to act on rather juvenile reflexes inherited from a century ago and from an entirely different situation—a situation on which my noble friend Lord Paget dwelt so nostalgically and which in some respects we all miss, but not in every respect, as it appears he does?

The situations in the world have changed, and we cannot be content for our Government not to have an orderly view about the terms on which we will recognise sovereignty and confer diplomatic status. I shall not go into the many areas, which are known to everybody, where diplomatic status is abused, or where it is endangered and has endangered the comity of nations. We cannot hope to play a part in organising similar co-ordinated approaches to the recognition of sovereignty of other great nations unless we have some clear, articulated views of our own based on analysis. Not to have them will produce exactly the situation to which the noble Lord, Lord Home, referred over Grenada, in which this Government found it necessary to be in sharp conflict with our major ally and in defence of the three gangster murderers who had taken over this hapless little island, probably against the wishes of most of its inhabitants and certainly much to the peril, as they thought, of most of its neighbours. We do not want a repetition of that lack of coherence; we want some thought given to the matter.

There is nowhere where the changed world requires this thought more closely than in economic and international affairs, and nowhere where the dangers will be greater if we do not work out some coherent response to the question of granting sovereignty in emergencies and seek to get like-minded great nations to go along with us in those principles.

In this modern, inter-dependent world it is not a very difficult task. We are living in a world in which vast financial and economic interests exist in the hands of small states and their nationals. Very vulnerable small states and their nationals have claims for hundreds of billions of dollars and pounds. They own enormous percentage shares—I shall not weary the House by reciting how important some of these shares are—in some of the greatest enterprises in the United States, Britain, Germany and throughout the world. In the event of a change of government in any one of these vulnerable and fragile states, as we are now reacting we shall automatically confer upon the new government (however they arrive and whatever their purposes, their principles and their manner of conduct) the title to all these claims to money, shares, land and interests of all kinds. This could be exceedingly dangerous. I do not want to be tactless and name states, but many noble Lords will have in mind the kind of states which are vulnerable in this way and which might be seized.

Lord Simon of Glaisdale

My Lords, perhaps I may ask the noble Lord this question. Has he not considered that the state which holds these assets is entitled to freeze them and take them over in the event of an illegal action by the possessing state—that is the state which takes over the previous possession? The great example is the United States and the Iranian assets.

Lord Lever of Manchester

My Lords, yes, they did this temporarily. I am not saying that they should not do it; I am complaining about the lack of coherence. As it happens, I approved the action of the United States, but a great many people here did not, and learned leaders were written condemning the United States as undermining the whole system of financial probity in that it had blocked the bank balances of the Iranian Government. Of course, the British Government did not do anything of the kind.

I want to see the great nations making up their minds precisely about that kind of situation, and how they will all react to it. At the moment, to take, for example, a Middle Eastern state with claims worth hundreds of billions of pounds, a small group might take power and possession. Judging by the reaction of this Government to the Grenada situation, that group will immediately be granted access to the bank accounts, safe deposits, shareholdings and land to which the citizens and the country concerned have title at the present time. That is very dangerous, and it is also very dangerous that no kind of concerted reaction policy has been agreed among the great nations.

In the modern world there is a vast range of international financial and economic organisations, which we all support and which are crucial to the reasonable working of a rather anarchic but basically inter-dependent world, and these go into action to some extent based upon the recognition granted to these states as they arrive. I do not agree with my noble friend Lord Paget that as a matter of principle we should veto recognition of states that have come into being by a coup. Having abdicated in Africa, we have more or less condemned that unhappy continent to be ruled by so-called countries which, in many cases, are the product of a coup. We have sat back and recognised and given full diplomatic status to gentlemen who have not merely killed their predecessors, as my noble friend regards the precondition, but who have actually eaten them after killing them. Over a period of years we have recognised—and I shall not name them—heads of governments who have not only eaten their predecessors but who, when discontented with their wives, have eaten them, too, as a form of divorce which only has economy to recommend it rather than moral principle.

I do not think that we can interfere in the internal affairs of a foreign state in that way and say that they will not be recognised if we do not approve the way in which the government were formed. Heaven forbid that I should grant recognition to a Government in this country that had murdered Mrs. Thatcher and had come to power because they seized the BBC! But if for any reason the people of this country assented to a change of government—as I hope they will not other than by democratic means—as long as that was effectively done, I think that the world would have to accept it, however much it disapproved.

Lord Kennet

My Lords, would the noble Lord not agree that that was done between 1642 and 1649, and, although the world did not approve, they did not invade us?

Lord Lever of Manchester

My Lords, I will concede at once any historic fact which is adduced by the noble Lord. As a man who was brought up by his grandparents and parents with a fanatical affection for this country, I still think that we have a deluding view of ourselves about how nice, kind, compassionate and moderate we always are. We sometimes behave in a slightly different manner. Therefore, I am sure that the noble Lord is right in drawing my attention to the occasions when we have acted outside our traditional calm.

I really have been too long. I want to conclude in this way. I applaud the noble Lord, Lord Paget, for forcing the Government to do a little thinking about this great question, and, having cleared their own mind, to seek to clear the minds of the other great nations—especially in the financial and economic fields—whose co-operation is required to achieve some reasonable, orderly response to changes in state title. In a world as interdependent as we are today, where these vast assets are held all over the world in all kinds of ways, and with all kinds of consequences from change of ownership, and where a new state power can achieve ownership of assets and have equal power to repudiate the obligations attached to those assets, I hope that we will not hear the humbug which pretends that this sort of coherent policy by our Government and other great governments must await the glorious day when the entire world meets in mass assembly—a sort of fatuous reproduction of the United Nations Assembly at its worst—and sits down and organises the detailed handling of these affairs.

Half-a-dozen great nations have a responsibility, and they must not abdicate it either in the name of pragmatism—meaning they are not prepared to analyse anything—or in the name of bogus democracy by assigning it to a world government which does not exist and is unlikely to exist in the lifetime of even the youngest noble Lord or noble Baroness present tonight.

8.22 p.m.

Lord Broxbourne

My Lords, the House is indebted to the noble Lord, Lord Paget, for focusing attention on a matter which is of interest to all and concern to many. He deprecates, and rightly, the prevalent system of government by coup—assassin government, to use his colourful phrase—and proposes remedies. All will share his concern; perhaps some of his remedies will command a less complete and less convinced acquiescence. In embarking on the related questions of sovereignty and recognition the noble Lord is on difficult ground. These are matters notorious in public international law for providing pitfalls for the unwary, and indeed not only for the unwary but for the wary as well. Certainly the noble Lord walks with considerable skill, and of course considerable grace as well.

But the ground is not made easier for theoreticians and would-be reformers, because although there are, as we have been reminded, two forms of recognition in international law, the de jure recognition and the de facto recognition, nevertheless there is a tendency, and a long-held tendency, to treat sovereignty and consequently recognition as primarily an issue of fact; a question simply, or mainly, of whether there is effective control and an effective exercise of jurisdiction in the country concerned. That being so, understandably no government itself in the enjoyment of power is anxious, by raising technical queries as to the status or legitimacy of another government, to run the risk of a tu quoque, and possible critical animadversions on its own pedigree and descent. It is for that reason that recognition has been set by eminent international lawyers to be more a matter of policy than of law.

Of course, there are many governments today whose title deeds are no better than false, and who exercise control following a coup and the overthrow of a predecessor, as so graphically referred to by the noble Lord, Lord Paget. But in many cases what other title deeds could they have? A coup is evil, but so very often are the circumstances that give rise to it—the denial of the ballot box, and the one-party state. Remedies, therefore, and the exorcism of undesirable methods must depend on the provision of more democratic means of change of government, and it is with these that we should be concerned. I was sorry to see the other day Mr. Mugabe give even a qualified defence and justification for the one-party state.

The noble Lord, Lord Paget, dealt attractively and nostalgically with the 19th century. He romanticised agreeably the pattern of spheres of influence of those days, but he must admit that it led to a bitter harvest in the end. Rather than harken back to such a state of affairs we should try to get what help we can from contemporary institutions; in this context, I would say, notably the United Nations and the Commonwealth.

Membership of the United Nations today is the badge of recognition. It commands recognition, and the two are indissolubly and properly linked. The noble Lord, Lord Paget, and the noble Lord, Lord Lever, too, were critical of the role of the United Nations and of the ease by which new membership can be attained, they say, without much study of credentials. But membership of the United Nations is not in law automatic, and should not in fact be automatic. Membership is in effect by election: that is, in the words of Article 4, by a decision of the General Assembly upon the recommendation of the Security Council". This gives in effect a right of blackball to any one member of the Security Council since the favourable recommendation depends on nine votes, including the concurring votes of the permanent members, thus giving a power of veto to any one of the permanent members. I would think that this is an undesirable way of controlling membership since it would obviously, if used, invite retaliation by some other member of the Security Council against some other applicant country simply on political or ideological grounds.

I would like to see explored a better way deriving from the charter. It is true that membership of the United Nations is open to all—all peace-loving states, in the language of the charter— but it is not an unqualified right of entry. The noble Lord, Lord Lever, referred to the desirability of a code of conduct, but of course there is a code of conduct inscribed in the charter. Entry to the United Nations, and therefore the right of recognition which goes with it, is contingent on the acceptance of the obligations contained in the charter, and the ability and willingness to carry them out.

Lord Lever of Manchester

My Lords, I must make clear that the code of conduct I want is a coherent one of the great powers for granting of full diplomatic recognition of these sovereign states, not a pious affirmation by the recipients of it. I want the great states to make up their minds on what they expect from states before they will grant, or continue, diplomatic status to them.

Lord Broxbourne

My Lords, the noble Lord will appreciate that he is now trying to sever the two things which I have said go together nowadays. It is inconceivable that a member of the United Nations should be denied recognition.

Lord Paget of Northampton

Why?

Lord Broxbourne

The right approach is obviously to see that membership of the United Nations conforms to the code of conduct which is certainly implicit and indeed. I would say, expressed in the charter. If the noble Lord pursues his studies and looks at Article 4 of the charter, there he will see that entry is contingent on the acceptance of the obligations contained in the charter and the ability and willingness to carry them out. That is the equivalent of the code of conduct which he suggested should be the test of recognition.

Lord Paget of Northampton

No, my Lords.

Lord Broxbourne

My Lords, the noble Lord indicates dissent, but I think he is wrong.

Lord Paget of Northampton

My Lords, if the noble Lord would permit me, I did say that it was never intended that it should be automatic, although in practice it has become so. That code of conduct is a code wholly without sanction. What I was asking for, and what my noble friend Lord Lever of Manchester was asking for, was that the code should be established by the great powers and it would be for them to judge whether a new state was capable or in a position to conform with it. The straight answer is that most of them are not.

Lord Broxbourne

My Lords, if the noble Lord would be patient for a moment, I do not want to prolong my observations but I want to respond to these interesting interventions which are so agreeably addressed to me. Of course, the noble Lord did say that. I appreciated it at the time, but what I am saying is that there is a code of conduct within the charter. It is expressly the criterion of admissibility to membership of the United Nations, not only the willingness to put it into effect but the ability to do that. Noble Lords will see this written in Articles 2 and 4 of the charter. The word used is "obligations". I think it is right that "obligations" are not defined eo nomine in the charter, but the purposes and principles are set out. I think the view is taken by commentators on international law that the obligations are to be interpreted by reference to the specified principles and purposes. I would think that this must be so.

The purposes and principles, as the House knows, include promoting and encouraging respect for human rights and the fundamental freedoms for all without distinction as to race, sex, language or religion. There is the code of conduct set out in broad but I think clear terms, and it is an inescapable condition of membership of the United Nations.

The noble Lord, Lord Paget of Northampton, says that it has fallen into desuetude. In so far as that is so, it is a matter much to be regretted. I respectfully suggest a possible way in which this matter can be dealt with. It seems reasonable and desirable that for application for membership of the United Nations, carrying with it as it does the badge of recognition, a ruling be obtained as to whether the applicant conforms to the specified criteria in the charter. That authoritative ruling could, one would think, be best sought from the international court by way of an advisory opinion in accordance with Chaper 4 of the charter.

I do not think there is a precise precedent for an advisory opinion on a specific case as to whether the conditions are satisfied, but as long ago as 1948 there was a famous advisory opinion on the membership of the United Nations given by the International Court. It would seem logical to extend from the general, as in 1948, with the passage of years to individual opinions which would be within the compass of Chapter 4, although perhaps in a sense breaking somewhat new ground.

I hope that my noble friend the Minister will say whether the Government would contemplate taking any initiative in this regard. There are requirements in the charter as to the observance of human rights. It would be useful and helpful for the British Government to draw attention to this aspect of the matter. They would do so peculiarly appropriately not only as representing a permanent member of the Security Council, but also as the Mother of Parliaments.

It is difficult to compel countries to practice parliamentary democracy and to renounce the one-party state. But it is difficult also to see how one can hope to end government by coup, the assassin government, where that is the only means available for opting for alternative government. One must hold out hope of peaceful and democratic change if there is to be a renunciation of violent change.

I come to my last point and one that hitherto has attracted little attention in the interesting and eloquent speeches to which we have been privileged to listen today; that is the contribution that the Commonwealth can make in this context. It is a fact that many of the countries where coups take place, where one-party state exists, are, unhappily, Commonwealth countries. This is particularly sad because these countries have a shared legacy in common law, respect for human rights and an attachment to parliamentary institutions. They are the heirs of Burke and Dicey, of parliamentary democracy and the rule of law. Surely all this can be brought into play in these difficult circumstances to help in solving the problems to which the noble Lord has so rightly drawn attention.

The Commonwealth is one of the three great organisations in which Britain today plays a leading part. The other two are institutionalised; the United Nations with its General Assembly, Security Council and the International Court, and the EEC with its Council of Ministers, its Commission, its Assembly and the European Court of Justice. The Commonwealth alone lacks an institutional structure. Should we perhaps be examining the possibility of strengthening that structure to make more effective its voice in the world in support of the things for which Britain and the Commonwealth have traditionally stood: parliamentary democracy, the rule of law, liberty and the rights of man? Perhaps again my noble friend the Minister will consider whether an initiative could be made by this country to the Commonwealth in this regard. This way I believe that much could be done, not only to help with the important problems raised today by the noble Lord, Lord Paget, but to broaden and strengthen the work of the Commonwealth of which we are still at the heart and centre.

Lord Morris

My Lords, before the noble Lord sits down, may I ask a quick question? How many nations who are members of the United Nations and who, subsequent upon their admission to the United Nations, have patently flouted the terms and conditions necessary on their application have been denied continued membership of the United Nations by the United Nations itself?

Lord Broxbourne

My Lords, as the noble Lord will know, there is a power in this regard where a member state is guilty of persistent violation of the principles—and the principles include those great matters to which I have been referring—and a procedure for expulsion by the General Assembly on the recommendation of the Security Council. What use has been made of that I could not say without notice. My noble friend the Minister (because this is one of the things that Ministers are for) will no doubt be able to supplement and give the ipsissima verba of the matter; but the power is there. I think the noble Lord will appreciate that there would be a natural reluctance to use this power in regard to conduct which is manifesting itself not strictly in the international sphere but within the area of the sovereignty of the nation concerned. I am much obliged to the noble Lord for his very interesting intervention.

8.42 p.m.

Lord Gladwyn

My Lords, I have not put my name down to speak. I thought that I might do so only in the event of any idea occurring to me during the course of the debate. As I understand it, the noble Lord, Lord Paget, is concerned with two matters and essentially has put down two questions. The first is this. Should states which are based on violence or coups be allowed to be members of the United Nations? The second question is this. Should we recognise the sovereignty of such states? I am very glad that he has raised these questions, because they are of great importance and we ought to examine them very intensively. On the question of whether states which are based on violence or coups may be members of the United Nations, I was going to make some remarks which have been taken out of my mouth by the noble Lord, Lord Broxbourne. The criteria for membership are the acceptance, the willingness and the ability to carry out the obligations of the Charter, which must be deemed to include human rights. I entirely agree with the noble Lord, Lord Broxbourne, on that.

What happened in the 1950s when we had this flood of members of the United Nations—states emerging newly from imperialism, as it was called, into independence—was that they were all admitted. It was largely, and I think unfortunately, as a result of bargains of some sort between the two potential super powers: "If you will admit my candidate, my excellent candidate, a wonderfully new democratic state just emerging from colonialism. I will then, if necessary, agree to the admission of your candidate". That was the bargain struck. It was as a result of that, and nothing to do with willingness or ability to accept the obligations of the charter, which resulted in a mass of states coming in. Probably some of them were not suitably qualified under the criterion advanced by the noble Lord, Lord Broxbourne.

It is difficult, of course, to imagine that anything else could have happened in practice. It was undesirable. I think, but quite comprehensible why it happened. Some people, including myself, at the time expressed doubts based on the evident fact that these countries were not able to accept the obligations of the charter. Nevertheless, our advice was not heeded. What it has come down to now, is that nearly all the states in the world, even very very small ones, have been admitted to membership, and, in practice, it is difficult to imagine that any of them could be expelled, except on the conditions laid down in the charter, which, in practice, obviously could not be carried out. There would be no unanimity among the great powers to do anything of the kind. Therefore, we must admit that the present situation is likely to go on. Practically all the states in the world are likely to continue to be members.

Your Lordships will remember that, from the very start, we agreed that Communist countries should be members of the United Nations. That was agreed at the very start. Whatever one may say, most people would think that Communist governments are essentially based on coups or some kind of violence or force. That was admitted from the start and I do not think that we can, therefore, object to other Communist states coming in; because we admitted that they could come in from the beginning.

On the other question of recognition, I always thought (in my profound ignorance of international law) that you afforded, at any rate, de facto recognition to any government which was deemed, in your opinion, to be in effective control of the country concerned. That was the general criterion. There may have been other criteria but that, in practice, was what was nearly always done. Indeed, it is done even now. We accept de facto recognition when the government is in control, as we think, of the country concerned. Hardly any other criterion emerges.

Of course, de jure recognition is, I think, given only when we have some confidence that it is a reasonable government, that it is not likely to commit any frightful atrocities and, therefore, we might delay granting de jure recognition. But, as I understand it, de facto recognition implies the exchange of some kind of diplomatic representation, and, indeed, the ability to trade with the country concerned. Therefore, what it comes down to now, I think, it is this. Are there any circumstances in which we can suitably withdraw recognition? I think there must be certain conditions in which we should do so. Look at Idi Amin in Uganda. There were appalling atrocities committed by him. They were so frightful that we should have been justified in withdrawing recognition—and I think we did withdraw it eventually. We should be able to withdraw recognition from a state which is governed by a monster, so to speak, as Amin was. That, I think, is a circumstance in which you could withdraw recognition.

But, normally, I think we should find it difficult to withdraw recognition from any state which we have recognised de facto; because, if we did, other countries probably would not do so, and we must think what would happen if we did it and nobody else did it. What could possibly be the advantage for us in those -circumstances? That seems to be the practical consideration which we must have in mind. Therefore, the only question that I think I would ask the Government is this. Would they agree that there are circumstances in which we could withdraw recognition; and, if so, what circumstances? Otherwise, am I right in thinking that we accept the general criteria for granting recognition to any country which I have myself advanced?

8.49 p.m.

Lord Kennet

My Lords, there are a few considerations arising out of the debate. First, Lord Home—everything that he says is important. He said that it was undoubted in international law that any sovereign state had the right to invite any other sovereign state to send military assistance on to its territory. All would agree. He instanced Grenada. Here was an undoubted sovereign state, very small. The government collapsed. There was an authority, the Governor-General, Sir Paul Scoon. I have not seen and I have not heard of any communication from Sir Paul Scoon to anybody except the chairman of the Organisation of East Caribbean States, who at that time was Dominica. The Organisation of East Caribbean States then invited three non-members, Jamaica, Barbados and the United States, to invade Grenada with them. Sir Paul Scoon's immediate comment, as reported in the press was, "I asked for help, not an invasion". It is undoubted that Mrs. Eugenia Charles invited the United States to help with the invasion. I repeat that the public here has yet to see the evidence of what Sir Paul Scoon did, and until that evidence is available we must conclude that was an action taken against international law.

The noble Lord, Lord Home, instanced three organisations in which we had partially surrendered sovereignty: the United Nations, the European Community and also NATO. I think a distinction needs to he made here. The North Atlantic Treaty does not require any surrender of sovereignty from any signatory, so far as I can remember. It simply says that if any of them is attacked or menaced by attack the others shall consult with it about what had best he done in order that full sovereignty should be preserved. Certain arrangements have grown up since, the most conspicuous among which are the command and control arrangements for the American nuclear missiles in this country which do indeed sometimes seem to infringe sovereignty. There is nothing of that in the treaty.

To the noble Lord, Lord Lever, may I make a suggestion? He said that there should be a means of withdrawing diplomatic recognition from countries which are governed by cannibals and which send arms through diplomatic bags to abolish their enemies—

Lord Lever of Manchester

My Lords, may I spare the noble Lord? I said nothing of the kind. I merely said that we ought to have a coherent basis for conferring full diplomatic recognition on states. I do not lay down any rule for anybody. If they prefer to have diplomatic relations with cannibals, that is perfectly okay. And I explicitly repudiated the notion that merely because a government came into being by a coup it should not be recognised. So please do not knock down arguments that I have not advanced.

Lord Kennet

My Lords, I stand corrected, of course. My suggestion is this. You do not need to withdraw or withhold diplomatic recognition. I would withdraw, or virtually withdraw, diplomatic privilege from everybody—cannibals and the virtuous alike. The great cities of the world are plagued by diplomats exerting improper privilege, from the greatest to the smallest. I would basically revise the Vienna Convention; it was formulated in a different day and age and is now not much use.

In conclusion, the sovereign state has not served mankind very well compared with—I see that the Government Chief Whip is making his second fiercest face; I shall be very brief.

Lord Denham

My Lords, I wonder whether the noble Lord would give way. We always have a gap in the list of speakers in case any noble Lord may find as he listens to the debate that something he thought might be raised has not been raised; the gap is there so that noble Lords who find this to be the case can come in and make that point. If noble Lords are going to make long speeches in the gap, it is really unfair to the House.

Lord Kennet

My Lords, I had spoken for three minutes when the noble Lord interrupted me. I hope he would agree that another 10 seconds may be allowed me to complete the sentence, which was that the sovereign state has not served mankind very well during its tenure, as compared with the tribe, the clan, the federation, and so on which preceded it. It is obviously coming to the end of its road and we cannot see yet what will succeed it. But we are lucky that sovereignty includes the ability voluntarily to surrender to larger frameworks.

8.53 p.m.

Lord Mishcon

My Lords, this has been an entrancing debate, started, if I may say so, by my noble friend Lord Paget with his usual frank delivery and courage of content. In a debate which includes the matter of recognition, I must tell him in all frankness that at times I do not recognise to which party he belongs. I can only say that it is always a happiness to see him sitting on our Benches. Obviously it was also a privilege to listen to the noble Lord, Lord Home, and to the modest provincial voice of the noble Lord, Lord Lever, who, whenever he comes to this House, brings a very worthwhile contribution. And what a pleasure it was to listen to the noble Lord, Lord Broxbourne, who brings not only the experience of a very great politician to this House but also, if I may say so as a humble colleague, that of a very eminent lawyer. And that obviously also very much applies to the noble and learned Lord, Lord Simon of Glaisdale.

Having uttered compliments to everybody, can I therefore hope to receive a welcoming reception for some views that I should like to put in a matter which concerns both law and politics? I think we may have become a little confused, if I may say so. We were talking at the very beginning about questions of sovereignty and about the recognition of states and of governments. I think that at times we became a little confused when we were talking about the recognition of states and of governments—and there is a difference.

The only difficulty one ever has in regard to the recognition of states is if a new state is created or an existing one divided. Then one has to wait for certain events before deciding upon recognition of a state, and that does not present very many difficulties, either in law or politically. A very different situation arises when one has to talk in terms of the recognition of governments. That recognition, as has been stated so correctly in the course of this debate, can be divided into de facto recognition and de jure recognition. De facto recognition means it looks as though a government is in control; and de jure recognition, if I may say so with all diffidence, does not go quite so wide as some people have indicated. It merely means in international law, so far as I understand it, that it is a question of its looking as though the effective control is permanent or has the appearance of being permanent: then de jure recognition is given.

Where I think we may have gone wrong is in that it appears to have been implied in this debate—and this has caused political problems to which I shall refer in a moment, together with some interesting political statements, and it has bedevilled this most interesting debate to some extent—that if you accord, as a government, recognition to another government that itself shows that you approve of the nature of the government or of the way that it has got there.

This was a matter that concerned many nations in the course of history. Indeed, in 1930 a very brave Foreign Secretary of Mexico propounded what is known as the Astrada principle. This is what he said: the Mexican government is issuing no declarations in the sense of grants of recognition since that nation considers that such a course is an insulting practice and one which, in addition to the fact that it offends the sovereignty of other nations, implies that judgment of some sort may be passed upon the internal affairs of those nations by other governments, inasmuch as the latter assume, in effect, an attitude of criticism, when they decide favourably or unfavourably as to the legal qualifications of foreign régimes". There has been a plea for reality in this debate, and when one faces reality, as I understand it, one faces in the foreign Ministry of any country the very real fact that you may have citizens within the state whose government you are considering recognising. You also have trade matters with that state which you have to take into account, and, if you set up on your own to be the arbiter, not as to whether there is effective control but as to whether the government have got there constitutionally, then in this day and age you are going to have an almost impossible time. One might then consider, on top of that, whether that government has carried out respect for human rights, which we value so much—and possibly some of us value that much more, or would judge that matter with much more conscientiousness, than a question as to how a government got there and whether a military coup was deserved or not. If we are going to grant or withhold recognition on the basis of human rights—and we have spoken in this debate about the judgment of the great powers—it leads me to wonder whether one great power is entitled to adjudicate upon human rights and then decide, in the midst of the assembly of great powers, that there should be recognition or non-recognition.

I am not going to abuse the time of this House, even though I put my name down to speak and even though I am not speaking in the break in your Lordships' List of speakers. However, it is interesting to reflect upon the way in which we in this country have dealt with the matter of the recognition of other governments and the basis upon which we have worked. I notice that in 1951 it was very much a question of whether our rules were right—whether we were correctly recognising international law in the matter of the recognition of other governments and their sovereignty—when the then Labour Government were faced with the position in Ghana where, as a result of a change in government, those who had preceded the current government in Ghana were charged with certain offences, did not stand trial as we understand trials, and thereupon were executed.

At that time Herbert Morrison was the Foreign Secretary. He was asked upon what principles the Foreign Secretary acts when deciding whether diplomatic recognition should be accorded to foreign governments. In Hansard of the other place of 21st March 1951 Mr. Morrison replied at column 2410: The question of the recognition of a State or Government should be distinguished from the question of entering into diplomatic relations with it, which is entirely discretionary. On the other hand, it is international law which defines the conditions under which a Government should be recognised de jure or de facto, and it is a matter of judgment in each particular case whether a régime fulfils the conditions. The conditions under international law for the recognition of a new régime as the de facto Government of a State are that the new régime has in fact effective control over most of the State's territory and that this control seems likely to continue. The conditions for the recognition of a new régime as the de jure Government of a State are that the new régime should not merely have effective control over most of the State's territory, but that it should, in fact, be firmly established. His Majesty's Government consider that recognition should be accorded when the conditions specified by international law are, in fact, fulfilled and that recognition should not be given when these conditions are not fulfilled. The recognition of a Government de jure or de facto should not depend on whether the character of the régime is such as to command His Majesty's Government's approval". In the midst of a very heavy debate, may I say that one Member of another place was witty enough to ask the Foreign Secretary whether, having described what should be recognised as a de facto or de jure government, the right honourable gentleman thought that his own Government ought to be recognised de jure by anybody, to which Mr. Morrison replied that that bright supplementary question had occurred to him while he was answering the main question.

In 1979 there was a discussion in the other place on the whole question of recognition. In that discussion—I am reading from Hansard of another place of 18th June 1979—when dealing with the situation then (it had been one of a difficult recognition in difficult circumstances) the Lord Privy Seal, Sir Ian Gilmour. Said, after hearing of the reaction of certain governments, which I need not mention: My reaction this morning was much the same as that of my honourable Friend. Our criteria for recognition have placed us in considerable difficulties. However, the alternatives also have disadvantages. I am told that virtually all Governments since 1950 have looked at the matter and have not altered the criteria. I assure my honourable Friend that we shall re-examine the matter". There was a re-examination. The latest in the history of declarations by Foreign Secretaries that I can trace is that which was made by the noble Lord, Lord Carrington, who I think everybody admits was one of our very great Foreign Secretaries, even if his tenure of office was all too short. This is what he said in answer, as was correctly pointed out earlier in the debate, to a Question for Written Answer. I am reading from Hansard of your Lordships' House of' 28th April 1980, column 1122. The noble Viscount, Lord Amory, asked Her Majesty's Government whether they had completed their re-examination of British policy and practice concerning the recognition of governments, and what was the result of that re-examination, to which Lord Carrington replied: Following the undertaking of my right honourable friend the Lord Privy Seal in another place on 18th June last we have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognise States in accordance with common international doctrine. Where an unconstitutional change of regime takes place in a recognised State, Governments of other States must necessarily consider what dealings, if any, they should have with the new régime, and whether and to what extent it qualifies to be treated as the Government of the State concerned. Many of our partners and allies take the position that they do not recognise Governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally 'recognising' the new Government. This practice has sometimes been misunderstood, and, despite explanations to the contrary, our 'recognition' interpreted as implying approval. For example, in circumstances where there might be legitimate public concern about the violation of human rights by the new régime, or the manner in which it achieved power, it has not sufficed to say that announcement of 'recognition' is simply a neutral formality. We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to Governments. Like them, we shall continue to decide the nature of our dealings with régimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so". The position therefore appears to be this—and I ask the noble Baroness for any supplementation she can give to that statement by Lord Carrington. Is it a fact that the answer to this whole debate is that we do not recognise governments any more, and that we decide whether diplomatic status should be accorded to them? Do we do so on the basis of certain principles which are political, and which we decide? And that in none of these circumstances is the question of whether or not we approve of that state or that government a very crucial matter? Is it the position that we have to deal with the practicalities of the situation?

That does not stop us from dreaming, as the noble Lord. Lord Home of the Hirsel, and the noble and learned Lord, Lord Simon of Glaisdale, dreamt. There is nothing to stop us from dreaming about some international code of ethics under which, if one does not adhere to that code, one goes outside the comity of nations. The noble Lord, Lord Lever of Manchester, said that that is something devoutly to be dreamt about and hoped for. But the practicalities of this world being as they are, one wonders whether Lord Carrington was not correct in the way in which he defined international law obligations and in the way in which he defined the duty of the British Government.

9.11 p.m.

Baroness Young

My Lords, we have had a most stimulating debate this evening. I have no difficulty in recognising that the noble Lord, Lord Paget of Northampton, is a member of the Labour Party—and I was very touched to hear him give such a robust defence of the British Empire. I was even more pleased when he said that he wished to base all his remarks on the principle of reality. But he asked of course an interesting question which bears on important issues—the Government's policy with regard to the recognition of other states; the way in which states become accepted as members of the international community; and the acceptance of new governments. I am grateful for this opportunity to clarify the facts and set out the Government's thinking on them.

At the end of the Second World War there were about 70 independent states in the world. Today there are some 170. This enormous increase has come about largely from decolonisation. The process is almost complete. It is unlikely that many more new states will come into being during the rest of this century. We all listened with great interest—as we always do—to what my noble friend Lord Home of the Hirsel had to say. He asked whether there were any United Nations rules which affect the donor or recipient of sovereignty. I am sure my noble friend is well aware that one of the aims of United Nations is, and I quote: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples". These principles have guided successive British Governments in matters relating to decolonisation.

Many noble Lords who have spoken this evening—and particularly the noble Lord, Lord Gladwyn—mentioned the recognition of states. The criteria which the Government normally apply to the recognition of a state are that it should have, and seem likely to continue to have, a clearly defined territory—with a population, and a government which is able of itself to exercise effective control of that territory, full internal autonomy, and independence in its external relations.

There are, however, exceptional cases where other factors—including relevant United Nations resolutions—may have to be taken into account. My noble friend Lord Home of the Hirsel mentioned the special difficulties faced by smaller states which do not have the traditional means to maintain and defend their sovereignty.

Events in Grenada have recently highlighted this problem, and it was discussed when the Commonwealth Heads of Government met in New Delhi last November, a fact to which my noble friend Lord Broxbourne referred. That meeting requested the Secretary-General of the Commonwealth to undertake a study, drawing as necessary on the resources and experience of Commonwealth countries, on the special needs of small states consonant with the right to sovereignty and territorial integrity which they share with all nations.

In some quarters membership of the United Nations has come to be seen as setting the final seal of approval on a country's independence. This is in fact a little wide of the mark. The United Nations Charter provides that membership of the organisation is open to all peace-loving states which accept the obligations contained in the charter and, in the judgement of the organisation, are able and willing to carry out these obligations. In practice the admission of states to membership is effected more or less automatically by a decision of the General Assembly on the recommendation of the Security Council.

Membership is not, of course, obligatory. Switzerland, for instance, has not sought it. And one or two of the smaller newly independent states have decided that the financial costs of full membership outweigh the benefits. But most have chosen to foster their relations with other countries by taking their place in this international forum. The consequent growth in the number of states joining the United Nations has been welcomed by successive British Governments.

The noble Lord, Lord Broxbourne, asked about expulsion from the United Nations. The situation is that membership of the United Nations once granted is not thereafter unconditional. The charter is a treaty and its rules bind the members. Article 5 provides that, a Member … against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership"; and Article 6 that, a Member… which has persistently violated the principles contained in the present Charter may be expelled". However, while it might be alleged that some states deserve action to be taken against them under these articles, none has ever been suspended from the exercise of the rights and privileges of membership or expelled from the United Nations. Partly this reflects the political reality that on such an issue agreement within the Security Council, and particularly between the permanent members, is unlikely; and partly a feeling, which we generally share, that offending states are more likely to be influenced by international opinion if they remain members of the United Nations.

The question posed by the noble Lord, Lord Paget, also concerns the acceptance of new governments. In an ideal world, all peoples would enjoy the right of self-determination in its fullest sense. They would enjoy freedom of speech, an independent judiciary, respect for human rights, and elections held under conditions which ensure the free expression of the opinion of the people in the choice of their government. In fact, many cases are far from that ideal. Many countries have long suffered from a denial of true self-determination through the refusal of totalitarian regimes to tolerate any sort of internal change. Other countries—and not only newly- independent ones—have undergone internal upheavals since 1945, a point mentioned by all noble Lords.

Revolutions and coups vary widely in character. In some cases a change of government through non-democratic means may be for the good, as the people of a country rise up against tyrannical rulers. In others, a small group seize by force what they could never have achieved by democratic means, and proceed to deny their own people what we would regard as elementary rights. In either case, there may be an offence against the previous constitutional order of the state concerned. But there is not thereby necessarily any offence against international law.

Similarly, a change of government, whether democratic or otherwise, does not affect a state's membership of the United Nations or of other international organisations of a worldwide or regional character. Sometimes, as a result of political upheaval, there are competing claimants to a state's seat at the United Nations, and this can create particular problems. And attempts are sometimes made to express disapproval of a government, by challenging the credentials of its representatives in the United Nations and related organisations. The Government view this sort of action with concern. It threatens a principle to which many think the United Nations should aspire—that of universality: and it is rarely directed against the sort of régimes of which noble Lords have expressed disapproval. Let us remember that the number of true, stable democracies in this world is comparatively small. It would be neither possible, nor useful, to turn the United Nations into a club composed only of such countries. The United Nations is at its most useful as a place of brokerage and negotiation between the world's governments as they exist.

There is, of course, a further question. Whenever a coup or revolution occurs in a state, the British Government must consider their own future relations with the government of the state concerned. This was a point raised by many noble Lords. The state continues to exist, of course, as do ties between its people and the British, which may include family and friendship links as well as those of culture and history. We have to remember that it is only the leadership which has changed: and that the circumstances are often confused and the facts slow to emerge.

Against this background, I should perhaps now explain briefly the Government's approach to the question of relations with revolutionary régimes. Until 1980 it had been the consistent practice of successive British Governments to decide the question of recognising a new regime according to whether it commanded the obedience of the mass of the population and whether it controlled the greater part of the state's territory—a point made by the noble Lord, Lord Mishcon. These criteria became well known to Parliament as different countries' changes of regime were debated. Nevertheless, their application often proved difficult in practice. Some revolutionary regimes, for instance, commanded the obedience of the people but not their willing support. Obedience had been obtained by threats. Popular sentiment was suppressed, and individual dissent not tolerated. The view was taken, however, that, if the criteria were satisfied, the British Government of the day should recognise the new régime.

Sometimes this practice was misunderstood and, despite explanations to the contrary, our act of recognition was taken to imply approval. This was particularly unfortunate in cases where there was legitimate public concern about the violation of human rights by the new régime or the manner in which it had taken power, perhaps from an elected Government. Each change of régime by means other than elections, and each coup or revolution—and those were many, of course—thus brought us face to face with an awkward and public dilemma. It also created a minor—and rather artificial—crisis in our relations with other countries precisely at the time when the protection of our interests required a relationship both calm and pragmatic.

It was for these reasons that in 1980 the noble Lord, Lord Carrington, announced a change in practice. In his statement of 28th April 1980, he announced that the Government had decided to cease recognising other governments. Today when there is a revolution, we simply—and I quote: decide the nature of our dealings with the new régime in the light of the Government's assessment of whether they are able of themselves to exercise effective control in the territory of the state concerned and seem likely to continue to do so". The noble Lord, Lord Lever, asked about finance, with the possibility of a successor government taking over and perhaps repudiating the assets and debts of its predecessor.

Lord Lever of Manchester

Not the assets, my Lords, the debts.

Baroness Young

The debts, my Lords, of its predecessor. That is not directly dependent on the recognition or non-recognition of the government. Our current practice is consistent with that of our major allies and partners. We naturally consult with other states whose interests are affected by this sort of situation in a similar way to our own.

Lord Simon of Glaisdale

My Lords, may I ask the noble Baroness this question? It was formerly the custom to intervene militarily when there was default. Do I take it from what she said that that is no longer policy? If not, what is now the sanction?

Baroness Young

My Lords, I was on the point of answering some of the questions that the noble and learned Lord had asked. He asked what were the circumstances in which the Government recognise any right of armed intervention? The answer, which answers the question he has just posed, is that any armed intervention could not be regarded as lawful unless the state in which the intervention took place gave a genuine invitation to the intervening state or the intervention could be justified in accordance with the principle of self-defence, confirmed by Article 51 of the United Nations Charter.

The noble and learned Lord also asked me a further question relating to human rights, and I will answer it now. My noble friend Lord Home of the Hirsel said that the entry by a state into any international agreement limits its behaviour—a point with which, clearly, we must all agree—but its sovereignty remains, so to speak, intact. Obviously a state undertaking international legal obligations must regulate its domestic law in a manner consistent with those obligations. There are now almost 80 states which are parties to the United Nations covenant on civil and political rights. I hope this answers the principle queries posed by the noble and learned Lord, Lord Simon, on this question of intervention and recognition of states.

I shall return now to the new procedure on recognition. It left unchanged the practice regarding the separate question of recognition of states and brought our practice with regard to governments into line with that of our major allies and partners. The new procedure has been in operation for almost four years and has given rise to few, if any, problems. Our position is widely understood, and we avoid the difficulty of seeming to bestow, or withhold, the accolade of recognition upon new régimes. The Government have dealings at an appropriate level with the new leaders. That level is determined to a large extent by the strength of the links between the people of this country and those of the other concerned.

I have been asked a number of other questions with which I shall deal briefly. The noble and learned Lord, Lord Simon, asked me about the position of the Baltic States. Perhaps I could just say that we support the right of all peoples to self-determination and deplore any infringement of international sovereignty. Successive British Governments, while recognising de facto the incorporation of the Baltic States into the Soviet Union, have not recognised this incorporation de jure. There has been no change in this policy. He also asked me a question about subversion which might come from broadcasting. Our view is that we would regard the free flow of information generally as being protected under the Helsinki Accords and the covenant on civil and political rights. As well, widespread jamming to keep out such free flow of information would be inconsistent with the obligations undertaken by those states that are parties to the international telecommunications convention. Such jamming would also he inconsistent with the Helsinki Accords and the covenant on civil and political rights.

I hope that what I have said about the change in practice or recognition goes some way to meet the concern expressed by the noble Lord, Lord Paget, the noble Lord, Lord Gladwyn, and other noble Lords who have asked questions about this matter. We have reconsidered the basis upon which we have dealings with governments which have achieved power through force. However, we cannot go further and reconsider our acceptance of the state concerned. Once a country is accepted as a state, it continues as such whether the government are changed by parliamentary elections or by revolution, just as it continues in being when there is neither revolution nor true elections but dictatorship or party despotism. The numerous ties between the state concerned and its people and other states and theirs survive any change of government. There can be no question of somehow expelling the state from the society of nations, any more than of severing the more personal ties.

When I said at the beginning of my speech that the question posed by the noble Lord, Lord Paget, bears on important issues, I should perhaps also have emphasised their complexity. I have tried to examine, and I hope elucidate, some of these complexities; and I should like to thank the noble Lord for the opportunity to do so provided by his Question.