The International Position of Dispossessed Governments At Present in England

Date01 December 1943
AuthorErnst Wolff
DOIhttp://doi.org/10.1111/j.1468-2230.1943.tb02879.x
Published date01 December 1943
208
MODERN
LAW
REVIEW
Dec.,
1943
THE INTERNATIONAL POSITION
OF
DISPOSSESSED GOVERNMENTS
AT
PRESENT IN ENGLAND
I
NDER
the
doctrine of non-recognition which, although controversial
in
some of
its
aspects.1
is
an integral
part
of modem international
law,a belligerent occupation does not affect the sovereignty of the
occupied
state.
It
follows
that the governments of the countries occupied
by Germany remain the sovereign governments of their countries even
in
exile.a
No
recognition of
this
fact by foreign powers in general and by the
power in the territory of which the exiled government has found asylum in
particular
is
necessary. Only in
so
far
as
the position of the bodies insti-
tuted in foreign temtory and claiming to be the legal governments of their
countries
is
not
in
accordance with their constitutional law (e.g. the Govern-
ment of the Netherlands cannot comply with the provision of the consti-
tution that the
seat
of the government must
be
on Dutch
soil;
Belgium
is
a
monarchy, but without
a
sovereign
at
present because King Leopold
remained in Belgium
as
a
prisoner
of
war), the exiled government must
be
recognised
by the territorial government
as
capab!e to exercise sovereign
power.
It
is
apparently for
this
reason that the expression “recognised”
is
used with regard to the relations between the
U.K.
and the Netherlands.
As
the Attorney-General pointed out in the second Amand Case,‘
H.M.
Government
recognise
H.M.
Queen
Wilhelmina and her Government
as
the Sovereign and Government of the Netherlands and
as
exclusively
competent
to
perform the legislation, administration, and other functions
appertaining to the Sovereign and Government
of
the Netherlands.”
U
I1
For the government of the country where the dispossessed government
want to establish themselves and to carry on their functions still
a
further
act
is
necessary. No foreigner is allowed to take up residence in the terri-
tory
of
a
foreign country without the consent of the Government of this
Lauterpacht, the problem of non-recognition (Part
I1
of Quincy Wright and
others
:
Legal Problems of
fhe
Far Easfern
Conflict).
Oppenheim-Iauterpacht,
International Law,
I,
p.
141,II.
pp.
138
and
158.
There is one dissenting author
:
Professor Edwin
M.
Borchard
(The
Doctrine
of
Non-Recognilion
;
Part
I11
of
the YYrk quoted in note
I)
denies the doctrine very
emphatically. He considers it as destitute of constructive value” (p.
159)
and
“like
a
prescription for general disorder” (p.
176).
But this view is not adopted by
any other contributor
to
that work, and it must
be
borne in mind that Prof.
Borchard is a very outspoken representative of the functional approach
to
inter-
national law. See besides the standard textbooks:
Drucker
:
The Legislation of the Allied Powers in the United King+m
in
Czechoslovak Yearbook of Infernational Law,
p.
45
ss.
Oppenheimer
:
Govern-
ments and Authorities in Exile,”
American Journal of Infernafional Law,
Vol.
36,
p.
568
ss.
It
may
be
interesting that the German Supreme Court, in Pre-Nazi
Germany,
of
course, took the same view
(Fontes
juris
Genfium,
Ser.
A.
Sec.
11,
Vol.
I,
p.
486).
In
The
American Journal
I.c.
p.
346
a
book
is reviewed
:
Andre
Jumeau:
Le Refuge du Gouvernemenf
d
I’Jhanger.
This book has not been
available to me.
Decision
of
King’s Bench Division. All
E.L.R.,
1942,
p.
236
ss.
See also
note
II
below.
*
This view is generally recognised.

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