Recognition of Insurgents as A De Facto Government
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00742.x |
| Author | H. Lauterpacht |
| Date | 01 June 1939 |
| Published date | 01 June 1939 |
THE
MODERN
LAW
REVIEW
VOl.
111
JUNE,
1939
No.
I
RECOGNITION
OF
INSURGENTS
AS
A
DE
FACT0
GOVERNMENT
I
HE
Spanish Civil War
of
1936-1939
gave occasion for
a
series of important decisions of English Courts on matters
of
interest for international 1aw.l These decisions were
given
at
a
period when breaches of international law on
a
wide
scale were being committed by some States and tolerated by
others
in what was assumed to be the general interest of peace.
Settlement of current disputes by reference to international law
had receded into the background.
It
thus happened that the
part of municipal tribunals in scrupulously upholding the prin-
ciples of international law, in
so
far
as
they were applicable,
acquired particular significance. The task with which they were
confronted was rendered specially difficult owing to
a
wide
dis-
crepancy which the nature of events established
h
many respects
between the conspicuous facts of the
civil
war and the inter-
national legal situation. In the first instance, while there were
present most of the requirements imposing upon third States the
duty to recognise
a
status of belligerency, Great Britain and
other countries were prevented from granting belligerent rights
owing
to the circumstance that the struggle had ceased from
its
See in particular
The
Cristina,
[1938]
A.C.
485; [I9381
I
All
E.R.
719;
Bunco
de
BiZba0.v.
per,
[rg38]
2
K.B.
176; [I9381
z
All
E.R.
253;
and
The
Aruntzazu
Mends,
discussed
below.
For
a
discussion
of
some
aspects
of
these
caw
see
Jennings
in
Modern
Law
Review,
ii
(1939).
pp.
287-291.
T
2
MODERN
LAW
REVIEW
June,
1939
very commencement to be
a
civil war in the established sense
of the term. The result was that the rebellious forces, while
denied the exercise of belligerent rights on the high seas, were
in other respects treated
as
a
community engaged in lawful
warfare. They acquired the status of insurgency and in that
capacity their freedom of action was given
a
wide and generous
interpretation. Secondly, until February, 1939, the insurgent
authorities, although exercising effective authority over the
major part of Spanish territory, were not recognised
as a
govern-
ment for the reason
that
to do
so
would have amounted to
premature recognition in breach
of
international law. Yet the
fact of the actual exercise of power could not properly be ignored.
The result, fully authorised
by
international law, was
a
measure
of
de
facto
recognition of substantial scope.
Thus
in both matters-recognition of belligerency and recog-
nition
as
a
government-there
was
created a position in which
Great Britain, acting in conformity with international law, found
herself compelled to disregard what some conceived to be the
realities of the situation and to adopt the intermediate legal
institutions of recognition of insurgency
(as
distinguished from
recognition of belligerency) and of
de
facto
recognition. Neither
of these had previously acquired any degree of precision.
It
is
probable that, designed as they are to meet factual situations
which, for one reason or another, cannot be defined in the typical
terms of recognition of belligerency and
de
jure
recognition of
a
government, neither of these institutions admits of precision
or
finality.
This
being so,
it
is of considerable jurisprudential
interest to examine the attitude of English Courts on these
matters
at-a
time when the realities
of
the law were confronted
with actualities which defiantly challenged its authority.
It
is
proposed to examine these questions by reference to what
is
perhaps the most significant case decided by English Courts
during the Spanish
Civil
War,
namely,
The
Arantzum
Media
a
case which raises questions of significance not
only
as
to recog-
nition of insurgents as
a
government but also
as
to certain
important aspects of the judicial function in the matter
of
interpretation
of
international law.
The
Arulztzazu
Melzdi
was registered
at
Eilbao. She had left
Spain before May, 1937. In June, 1937, Bilbao was captured by
the insurgent forces. On 23rd March, 1938, the owners of the
ship were served in London with
a
notice of requisition on the
*
[1938] 3
All
E.R.
333
(Judgment
of
Mr. Justice Bucknill);
[1938]
4
All
E.R.
267
(Judgment
of
the Court
of
Appeal: Slesser, Finlay and Goddard,
L.JJ.);
[1g3g]
I
All
E.R.
719
(Judgment
of
the House
of
Lords: Lord Atkin,
Lord Thankerton, Lord
Russell
of
Killowen, Lord Macmillan and Lord Wright).
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