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?

It is an especial privilege to appear before the members of the Council of Foreign Relations because of their notable endeavor to facilitate an intelligent appreciation by our people of policies and action in the field of foreign affairs. Not only have you provided a forum but in-establishing a quarterly review under highly competent direction you have made one of the most helpful contributions to a better understanding of foreign relations than has ever been made by private enterprise. The need is obvious.

In this case before a Chamber of the International Court of Justice, El Salvador and Honduras, by a Special Agreement dated May 24, 1986, requested that the Chamber delimit the land frontier and determine the legal status of certain islands and waters in the general area of the Gulf of Fonseca. The gulf, located on the Pacific coast of Central America, is bordered by El Salvador, Honduras and Nicaragua. Nicaragua filed an application for permission to intervene in the case on November 17, 1989, pursuant to Article 62 of the Statute of the Court, which permits a state to request intervention if the state considers “that it has an interest of a legal nature which may be affected by the decision in the case.”

Although “[tjreaties are the law of the land, and a rule of decision in all courts,” the president and the courts may sometimes be powerless to achieve compliance with a U.S. treaty. That was the puzzling outcome of Medellin v. Texas. Even though the Supreme Court declared that the United States has an international obligation to comply with the Avena judgment of the International Court of Justice (ICJ), the Court invalidated the president’s memorandum directing Texas and other errant states to comply.