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De Facto and De Jure Recognition: The Arantzazu Mendi

Published online by Cambridge University Press:  12 April 2017

Herbert W. Briggs
Herbert W. Briggs*
Affiliation:
Of the Board of Editors
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Abstract

The familiar and confusing distinction between de facto and de jure recognition is made even more confusing in a recent British decision, The Arantzazu Mendi. The failure to understand the distinction between de facto recognition of a new state or government and de jure recognition, has been in part caused by a careless use of terms. “The subject has been unduly complicated,” writes Borchard, “by the chameleonic uses of the term de facto, which has been applied promiscuously to de facto authorities in the field, to governments not established by constitutional methods, and as an adjective to qualify recognition. …” Raestad notes that although “de jure recognition” is more or less equivalent to “recognition,” and a “dejure government” to “government,” the term de facto is used differently. What is the difference between (1) de facto recognition of a government, (2) recognition of a de facto government, and (3) recognition as a (or the) de facto government?

Type
Research Article
Information
American Journal of International Law , Volume 33 , Issue 4 , October 1939 , pp. 689 - 699
Copyright
Copyright © by the American Society of International Law 1939

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References

1 Borchard, E. M., review of Stille, H. E., Die Rechtsstellung der de-facto-Regierung in der englischen und amerikanischen Rechisprechung, this Journal, Vol. 26 (1932), p. 927 Google Scholar.

2 Arnold, Raestad, “La Reconnaissance Internationale des Nouveaux Stats et des Nouveanx Gouvernements,” Revue de Droit International et de Législation Compar&e, 3rd S6r., Vol. 17 (1936), pp. 257, 303Google Scholar ff.

3 [1939] P. at 43–44.

4 Cf. Julius Goebel, The Recognition Policy of the United States (1915), pp. 20 ff., 48 ff., 52.

5 John, Fischer Williams Sir, “Some Thoughts on the Doctrine of Recognition in International Law,” 47 Harvard L. R. (1934), pp. 776, 781Google Scholar.

6 Cf. Georges Pinson Claim, French-Mexican Mixed Claims Commission. Annual Digest of Public International Law Cases, 1927–1928, p. 204.

7 Cf. Henry Clay’s speech (March 24, 1818) on the de facto principle of recognition: “We [the United States] have invariably abstained from assuming a right to decide in favor of the sovereign de jure and against the sovereign de facto. That is a question for the nation in which it arises to determine. And so far as we are concerned, the sovereign de facto is the sovereign de jure.” Quoted in Goebel, op. cit., p. 123. Cf. also J. Q. Adams, Secretary of State, to the Spanish Minister, April 6,1822: “In every question relating to the independence of a nation two principles are involved, one of right and the other of fact; the former exclusively depending upon the determination of the nation itself, and the latter resulting from the successful execution of that determination.” 1 Moore, Digest of International Law, p. 87.

8 Cf., for example, the British Foreign Office letter of April 20,1921: “I am to inform you that H. M. Government recognize the Soviet Government as the de facto Government of Russia.” Luther v. Sagor, [1921] 3 K. B. at 541. Cf. also Raestad, loc. cit., p. 303 ff.

9 Cf. Dionisio Anzilotti, Cours de Droit International, Vol. 1 (1929), p. 171; Arrigo Cavaglieri, “Règles générates du Droit de la Paix,” Becueil des Cours de l’Académie de Droit International (cited hereafter as Hague Becueil), Vol. 26 (1929), p. 351; Hans Kelsen, “Thiorie generale du Droit International Public,” 42 ibid. (1932), p. 287. Consult also, Moore, John Bassett, “The New Isolation,” this Journal, Vol. 27 (1933), pp. 607–622 Google Scholar.

10 Brierly, J. L., The Law of Nations (2d ed., 1936), p. 110 Google Scholar.

11 Erich, Rafael, “La Naissance et la Reconnaissance des États,” 13 Hag ue Recueil (1926), pp. 483, 486Google Scholar. He cites the example of the de facto recognition of Estonia, Latvia and Lithuania by the Powers in 1918—a recognition which was not made de jure until 1921, and for Lithuania, in 1922. The threat of Russian reëstablishment of the status quo ante was the only reason, he says, why de jure recognition of these Baltic states was delayed. Ibid., p. 483.

12 Strupp, Karl, “Les Rigles g&n&rales du Droit de la Paix,” 47 Hague Recueil (1934), p. 451 Google Scholar.

13 Raestad, loc. cit., p. 307.

14 Cf. this Journal, Supplement, Vol. 30 (1936), p. 185. The original French text is in Annuaire de I’Institut de Droit International (Brussels, 1936), Vol. 2, pp. 300–305. Cf. also Oppenheim, L. F., International Law (5th ed., Lauterpacht), Vol. I (1937), p. 136 Google Scholar.

15 SirJohn, Fischer Williams, “La Doctrine de la Reconnaissance en Droit International et ses Développements Récents,” 44 Hague Recueil (1933), p. 262.Google Scholar He adds that de facto recognition, once granted, is as irrevocable as de jure recognition.

16 Erich, loc. cit., p. 466.

17 Salvioli, Gabriele, “Les Rigles generates de la Paix,” 46 Hague Recueil (1933), p. 48 Google Scholar.

18 SirBaty, Thomas, “So-Called De Facto Recognition,” 31 Yale Law Journal (1921–1922), pp. 486—7 Google Scholar.

19 Scelle, Georges, “Rigles Ginirales du Droit de la Paix,” 46 Hague Recueil (1933), p. 389 Google Scholar. Note the confusion of terms which runs through the whole subject.

20 (1887) 36 Ch. D. 489, 497. The case turned on an attempt by a “succeeding de jure government” in Peru to disavow a compromise made by the preceding de facto government with the Peruvian Guano Company, on the ground that the acts of the de facto government were null and void.

21 [1919] P. 95.

22 [1921] 3 K. B. 532, 538, 543. When counsel called the attention of the court to Williams v. Bruffy, 96 U. S. 176, Underhill v. Hernandez, 168 U. S. 250, and Oetjen v. Central Leather Co., 246 U. S. 297, Bankes commented: “In none of these cases is any distinction attempted to be drawn in argument between the effect of a recognition of a government as a de facto government and a recognition of a government as a government de jure, nor is any decision given upon that point. …” Ibid., 541–2.

23 Ibid., p. 551.

24 The Arantzazu Mendi, [1938] P. 233; affirmed by Court of Appeal, [1939] P. 37; affirmed by House of Lords, [1939]' A. C. 256, this Journal, Vol. 33 (1939), p. 583.

25 Only so much of the case as deals with the status of the Franco regime will be examined in the present comment.

26 [1938] P. at 242.

27 If this is not the meaning of paragraph (9), the only other conclusion is that the Foreign Office did not say that it had recognized the Franco regime—a point urged by counsel for the Spanish Government. Cf. [1938] P. at 237 and 244; [1939] P. at 38; [1939] A. C. at 259. In the House of Lords, Lord Russell of Killowen observed that the letter addressed to the Foreign Office “was one which invited an answer to a question of fact—namely, whether or not the Nationalist Government of Spain was recognised by H. M. Government as the Government of a foreign sovereign state; but the answer of May 28,1938 (in para. 9), poses another and quite a different question—namely, whether the Nationalist Government should be so regarded.” [1939] A. C. at 267. Lord Atkin identified the two questions as being the same. See below, footnote 43. In the same court, Lord Wright said that the Foreign Office reply was “a statement of fact, the contents of which are not open to be discussed by the court on grounds of law. But I do not think that in this case the Foreign Office meant that they should be so open. The Foreign Office stated the precise facts as then existing in regard to recognition by H. M. Government, by the decision of which recognition is given or withheld. The question of law left to the court was what was the effect of these facts on the issues before the court.” Ibid., 268.

28 [1938] P. at 243. Italics not in the original.

29 “It may well be,” said the court, “that a neutral sovereign power cannot in terms recognize the independence of any government seeking to overthrow by force the de jure government, without in some measure departing from its own neutrality.” [1938] P. at 244–245.

30 The confusion of “state,” “government,” “sovereignty,” in the court’s mind is sufficiently disturbing to a political scientist to warrant a footnote, but cannot be discussed in this comment.

31 [1938] P. at 245.

32 Ibid., 248.

33 Ibid.

34 Banco de Bilbao v. Sancha; Same v. Rey, [1938] 2 K. B. 176.

35 Per Clauson, L. J. Ibid., at 195.

36 Ibid., at 195–196.

37 This curious revival of Through the Looking Glass logic, which turns the recognized de jure government into a “rival” claimant whose acts will be treated as a “mere nullity” I hope to examine in later comment.

38 [1939] P. 37.

39 Ibid., 45.

40 Ibid., 54–55.

41 [1939] A. C. 256.

42 [1939] A. C. 259–262.

43 Lord Atkin said that the question before him was “whether the Nationalist Government of Spain represent a foreign sovereign state in the sense that entitles them to immunity from being impleaded in these courts …” and that “on the question whether the Nationalist Government of Spain was a foreign sovereign state, Bucknill, J., took the correct course” in asking the Foreign Office “whether the Nationalist Government of Spain is recognized by H. M. Government as a foreign sovereign state.” The two questions are not, of course, the same: to ask whether a regime is in fact the government of a state is not the same question as whether it has been recognized as such by H. M. Government. But Lord Atkin, following the traditional judicial pattern, identifies the two questions and states that the only way a British court can inform itself of the fact whether a party before it is a state is to ask His Majesty. He specifically disagreed with Lord Sumner in Duff Development Co. Ltd. v. Government of Kelantan, [1924] A. C. 797,823–824, “that recourse to H. M. Government is only one way in which the judge can ascertain the relevant fact,” and rejected an argument by Mr. Pilcher that “the status of a foreign sovereign state is a matter of public notoriety, and, if there is any doubt on the point, that doubt can be resolved only by inquiries made at H. M. Foreign Office.” [1939] A. C. at 263–264 and 259.

The point is reminiscent of the struggles of American courts to decide whether the Soviet Government could be said to exist before it was recognized by the United States Government. Cf. L. L. Jaffe, Judicial Aspects of Foreign Relations (1933).

44 Ibid., 264–265.

45 Ibid., 265.

46 The meaning of this sentence is not entirely clear to the writer. It apparently means that where England recognizes two governments (which are fighting each other) in Spain, the de jure government will not be allowed to claim its rights before an English court as to territory or things not de facto in its control.

47 Lord Thankerton, Lord Russell of Killowen, Lord MacMillan, and Lord Wright concurred.

48 They could not say that it was “independent,” because the war was not over.

49 Whether the state of which the Franco regime was the government was “Spain” the court does not say, perhaps because paragraphs (1) and (2) of the Foreign Office letter inform the court that the dejure government had been recognized by His Majesty as the government of the sovereign state of Spain.

50 Cf. above, footnotes 27 and 43.