Abstract
During the course of the American Civil War attention was devoted to the question as to whether belligerent recognition implied the recognition de facto of the insurgent government. Seward made strong representations to the British government for holding informal intercourse with Confederate agents. Lord Russell demurred by arguing that when the subjects or property of a state are injured by “a de facto government,” the aggrieved state has a right to claim redress and reparation from that de facto government.1 In order to make demands for reclamations it was necessary for states to enter into communication with the de facto authorities, and such action could not be construed as violating international law. “It maybe necessary in the future, for the protection of the interests of Her Majesty’s subjects in the vast extent of country which resists the authority of the United States, but such communication will not imply any acknowledgment of the Confederates as an independent State… ”2 Russell’s perspicacity was vindicated when in the course of the War, belligerent recognition involved carrying on nearly all the international intercourse that normally exists between independent states. The lorms of diplomacy, however, were studiously avoided.3
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Smith, Great Britain and the Law of Nations, i, 304. In March of 1861, John Stirrup, a young Negro, was kidnapped in the territorial waters of the Bahamas by the master of a Southern Schooner and sold into slavery in Georgia. He escaped and in 1863 presented a claim for reparations for damages through the British Colonial Office. The Law Officers advised that “although the relations of the Government of the Southern States with Great Britain are those of an unrecognized de facto government only, the Southern Government is nevertheless bound to take proper measures for the purpose of bringing to justice the offender, if found within the limits, over which it exercises de facto authority.” Ibid., 233-333.
Seward to Adams, Diplomatic Correspondence of the United States, 1861, 81: Seward to Dayton, Ibid., 224, 229, 231-234. The nature of de facto revolutionary governments is commented on in Emperor of Austria v. Day (1861) 3 De G.,& J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co. (1886) 36 Ch. D. 489, 497; Republic of Peru v. Dreyfus (1888) 38 Ch. D. 328, 356, 359; Luther v. Sagor & co (1921) 3 K.B. 532; United States v. Yorba (1863), 1 Wall 412; United States v. Lynde (1870) 11 Wall 623.
Smith, op. cit. i, 306.
Lauterpacht, Recognition in International Law, 9.
Smith, op. cit., i, 307.
Ibid.
Ibid., 333.
Ibid., 307; “Certain states, then, of ten enter into relations with the (insurgent) local government, either to arrange conventions on particular objects, or to have its official representatives nearby. This is done in a recognition de facto…” (Translation) — Gemma, “Les Gouvernements de Fait,” Hague Académie Recueil, iii, (1924) 405.
United States v. Prioleau, 2 Hem and Mil. 559 (1865).
Smith, op. cit., 264.
Fifield v. Insurance Company, 47 Penn 166 (1864).
Ibid., 170.
Ibid.
Ibid., 171. In a concurring opinion Justice Agnew argued that there existed no de facto government in the Confederacy. He reasoned that the territory encompassed in the Confederacy, though so large, was only a part of a larger nation; that it must in fact represent the entire people of a nation whether it represents them according to their will or contrary to it. “A rebellion or attempt at revolution by a portion of a people still en esse, active and successful in asserting its authority, does not constitute a de facto government; for the reason that it in no sense represents a nation or exercises its sovereignty.” Ibid., 183.
Thorington v. Smith, 8 Wall 10 (1868).
Ibid., 8.
Ibid., 9.
Ibid.
Ibid.
Williams v. Bruffy, 96 U.S. 76 (1877).
97 U.S. 594 (1878).
Lauterpacht, op. cit., 289-290.
During the course of the Spanish Civil War when Mr. Chamberlain was pressed by the opposition through Mr. Atlee as to whether the exchange of agents between Franco and Great Britain did not constitute “a de facto recognition of the insurgent government?” replied: “No, sir; I am advised that it makes no difference in the existing situation.” (Commons, Debates, cccxxviii, 1124-1125, November 4, 1937). Atlee’s question was phrased to make it look as if Great Britain was recognizing the Nationalist government of Spain as a government of a sovereign state. Had the question been phrased “a recognition of the Nationalist government as a government de facto”, both the question and the answer might have been clearer and more accurate.
See J. Spiropoulos, Die de facto-Regierung im Völkerrecht, (1926), 57, 72–76; 172-73; J. L. Kunz, “Die Anerkennung von Staaten und Regierungen im Völkerrecht,” Zeitschrift für die gesamte Staatswissenschaft, (1937), 593-597; Castren, op. cit., 60, 133, 153, 161, 168, 171, 190, 203; W. Wengler, Völkerrecht, i, (1964), 794, n. 2. Wengler makes the point that belligerent recognition has been replaced with recognition of local de facto governments.
Castren, op. cit., 133.
Ibid., 171, 190. Padelford, International Law and Diplomacy of the Spanish Civil War, p 9.
(1938) P. 233; (1938) P. 95; (1939) A. C. 256 (House of Lords).
(1921) 3 K. B. 532.
See for instance Banco de Bilbao v. Rey, (1938) 2 K. B. 176; (1938) 2 All E. R. 253, and Bank of Ethopia v. National Bank of Egypt, (1937) Ch. 513. The decision in the Arantzazu Mendi has been criticized by Lauterpacht in an article in the Modern Law Review iii, 1-20 (1939) and in his Recognition in International Law, 179 ff. He thinks that the decision in this case, which permitted an insurgent authority recognized as the de facto government to have the same extra-territorial validity for its acts as that of the de jure government, was inconsistent with the prevailing rule of law on the subject as originally laid down in Luther v. Sagor.
For French cases in which the Nationalist government of General Franco was considered the de facto government of Spain see Rousse et Maber. b. Banque d’Espagne v. Banco de Bilbao, Court of Rouen, December 7, 1937, Sirey (1938), ii, 1724; Moulin v. Volatron, May 25, 1937, Sirey (1938) ii, 105-108. For review of Belgian judicial decisions in which the right of both the de jure and de facto governments of Spain to requisition Spanish ships lying in Belgian territorial waters, is maintained, see Van Hille, “Notes sur la Jurisprudence belge en matière de droit international.” RDI, xix, 1938, 332-336.
See note 3 above. Russell to Adams, November 26, 1961; “Her Majesty’s Government hold it to be an undoubted principle of international law that when the persons or the property of the subjects or citizens of a state are injured by a de facto government, the state so aggrieved has the right to claim from the de facto government redress and reparation. Moore, Digest, i. 209.
Castren thinks otherwise. Op. cit., 204.
For instance the debt obligations of the state governments under the Confederacy incurred to prosecute the War were held invalid by the Supreme Court at the close of the war. As late as 1943 a holder of Confederate bonds, issued by the State of Mississippi, a citizen of the United States, attempted to bypass the provision of the United States Constitution forbidding a citizen of the United States to sue a State in the Union, by turning his bonds over to the Principality of Monaco. The latter brought suit before the Supreme Court for recovery from Mississippi under the original jurisdiction clause of that court. But plaintiff Monaco lost the case because immunity of state from suit by a foreign nation has not been waived by virtue of joining the federal union. Monaco v. Mississippi, 292 U.S. 313.
Whiteman, for instance, sees no distinction between the two. Digest ii, 3 (1963). See comments on Whiteman’s use of recognition per se in 62 AJIL, 457 (1968) by Charles L. Cochran.
British Neutrality and the American Civil War, 108. For additional argument that de factor recognition is impracticable of precise application because of its subjective nature, see Moore, Digest, i, 87.
“De Facto and De Jure Recognition,” AJIL, xxxvii (1939), 690 citing Georges Pinson Claim, French-Mexican Mixed Claims Commission, Annual Digest of Public International Law Cases, 1927–1928, 204.
Briggs, loc. cit., 690.
Review of H. E. Stille, “Die Rechtsstellung der de-facto Regierung in der englischen und amerikanischen Rechtsprechung,” AJIL, xxvi (1932) 927. Professor Briggs inquires: “What is the difference between (1) de facto recognition of a government, (2) recognition of a de facto government, (3) recognition as (of the) de facto government?” There is none, he thought. Loc. cit., 689.
Federal Bar Association Journal, i, #3, 32.
See n. 23 above.
Lauterpacht, op. cit., 294.
See Hyde, International Law, (2nd) i, 193-194 on matter of referring to insurgent governments as de facto governments.
Lauterpacht, op. cit., 285.
Modem Law of Nations, 53.
This was the situation which would describe the relations of the United States for instance in dealing with Castro’s revolution against Baptista in Cuba. Clearly belligerency was not invoked since a search of the records shows no use of the international proclamation of neutrality. The President of the United States never invoked our domestic laws in that situation. At most is a reference to the insurrection by the Secretary of State calling attention to the strife and reminding Americans that they must not violate a particular provision of that law. See Chapter VIII below.
W. Wengler, Völkerrecht. i, p. 794, n. 2 and n. 3.
Castren, op. cit., 79.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1971 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Oglesby, R.R. (1971). Belligerent Recognition as de Facto Recognition of the Insurgent Government. In: Internal War and the Search for Normative Order. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9205-7_5
Download citation
DOI: https://doi.org/10.1007/978-94-011-9205-7_5
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-011-8485-4
Online ISBN: 978-94-011-9205-7
eBook Packages: Springer Book Archive