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RECOGNITION OF INSURGENTS AS A FACTO
RECOGNITION OF INSURGENTS AS A FACTO
RECOGNITION OF INSURGENTS AS A
DE FACT0 GOVERNMENT
I
in its legal results from full de jure recognition? If so, was the
caveat in the statement of the Foreign Office without any
ascertainable significance? If so, has the prohibition of premature
recognition ceased to be a rule of international law?
I11
The decision of the Court of Appeal in Luther v. Sagorlo-a
much overworked case-created among many, including writers
of distinction, the impression that there is “ a diplomatic dis-
tinction between recognition de j w e and recognition de facto, but
[that] there is no legal difference between these two forms.”ll
Actually, the decision in that case went no further than to lay
down that there is no difference between de facto and de jure
recognition for the purpose of acknowledging the validity of the
legislative or executive acts of the government recognised de fucto.
It was to that extent-and no further-that the Court of Appeal
relied upon Luther v. Sagor in its decision in Bunco de Bilbao v.
Rey.12 In that case the Court held that, in view of the defacto
recognition of the insurgent authorities by the British Govern-
ment, it was bound to treat as valid the decrees of the Spanish
Nationalist authorities in the territory under their control while
treating as a mere nullity the decrees of the Republican Govern-
ment in respect of that territory. The communication of the
Foreign Office in that case approximated closely to that in The
Aruntzazu Mendi except that it was stated in the crucial passage
that “ His Majesty’s Government recognised the Government of
General Franco as an insurgent Government exercising de facto
control over a considerable portion of Spain.” I t may be a
matter of dispute how far the qualification of the recognised
authority as an “insurgent ” Government was intended to reduce
the import of the recognition ; similarly, it may be a matter of
discussion how far the principle of Lzlther v. Sagor, originally
applied to an authority in unrivalled possession of the entire
territory of the State, can be applied without modification to the
case of an insurgent administration in the course of a civil war
waged against a Government enjoying recognition de jure. But
apart from the not unnecessary warning against using the decision
in Luther v. Sagor as covering all possible aspects of de facto
recognition,lS there are weighty reasons of convenience and
common sense which render acceptable the true principle of
lo [1921]3 K.B.532.
11 Brierly, The Law of Nations (2nd ed., 1935). p. 110.
l* [1938]z K.B.176; [I9381 2 All E.R. 253.
la See below, p. 19. as to The Gagara.
RECOGNITION OF INSURGENTS 9