CHAPTER XXI

STATUS OF UNRECOGNIZED GOVERNMENTS

WHEN there exists in a foreign country a contest between two or more political organizations each claiming to be the legal Government of the State, the courts of other States will recognize that Government, if any, that has been recognized by the political departments of their own respective Governments.1

When, as a matter of fact, a recognized Government is overthrown, the Governments of other States may, nevertheless, continue to recognize the old, but actually defunct, Government. In such cases, the courts of those States continue to treat, as still existent in law, the old Government. This, for example, was for some years the attitude of the Government of the United States and its courts with reference to the Government of Russia which was overthrown in 1917. Thus, in The Penza 2, the court held that the Soviet Government of Russia could not maintain a maritime libel in the federal courts because it had not been recognized by the American Government. In that case the United States Department of State, in answer to an inquiry, had written as follows: "In reply the Department desires to inform you that the so-called

"It is an axiom in international relations that a sovereign State cannot speak with two voices. For the Foreign Office to recognize a foreign community as a sovereign State, or a particular person or group of persons therein as entitled to act for that community, while the judges denied such recognition, would be an impossible situation." A. D. McNair in the British Year Book of International Law, 19211922, p. 65, "Judicial Recognition of States and Governments, and the Immunity of Public Ships."

2277 Fed. Rep. 91 (1921).

Russian Federated Republic has not been recognized by the Government of the United States, nor is M. Recht recognized by it as an agent or attorney of the so-called Russian Socialist Federated Soviet Republic. The status of Mr. Bakhmetieff as Ambassador of Russia has not changed since this Department's letter to you of June 24, 1919."

A similar conclusion was reached by a New York Court in the Russian Socialist Federated Government v. Cibrario. In this case, in affirming the judgment of the lower court, the Court of Appeals, speaking through Justice Andrews, as to the right of a government unrecognized by the political departments of the United States Government to sue in American courts, said: "We find no precedent that a Power not recognized by the United States may seek relief in our courts. Such intimations as exist are to the contrary. . . . A foreign Power brings an action in our courts not as a matter of right. Its power to do so is a creature of comity. Until such government is recognized by the United States, no such comity exists."

This decision is all the stronger in that it was rendered after the same court had held that the unrecognized Soviet Government might be sued.*

So, also, it was held in Pelzer v. United Dredging Co. that an administratrix appointed by the unrecognized Government of Mexico could have no locus standi as plaintiff in the courts of New York.

6

In Sokoloff v. National City Bank it was held by the New York Supreme Court that the defendant could not show that, by an act of the Soviet Government in Russia, the performance of an undertaking entered into by it had

191 N. Y. Supp. 543; 235 N. Y. 255 (March 6, 1923).

4 Wulfsohn v. Russian Socialist Federated Soviet Republic. 234 N. Y.

372.

193 N. Y. Supp. 675.

119 Misc. Rep. 332 (1922).

been rendered impossible. "The impossibility of performance cannot avail the defendant," said the court, "unless such impossibility was created by act of the sovereignty, that is, by law." In the instant case, the Soviet Government had not been recognized by the political departments of the United States, and, therefore, the courts of the United States could not regard its acts as having had in Russia the force of law.

In United States v. Trumbull,' it was held that a foreign consul holding an unrevoked exequatur issued by the President of the United States must be recognized by the courts as such foreign consul even though the Government which sent him had been overthrown as a result of a successful revolution.

In The Rogdais the court, sitting in admiralty, held that it was without jurisdiction to determine the right to a vessel, admittedly the property of the Russian Nation, as between the unrecognized Government of the so-called Soviet Republic, and the old Russian Government as represented by its duly accredited ambassador who was still recognized by the United States and still in actual possession of the vessel.

In The Gagara the status of the provisional Government of Esthonia was raised in an English court. In response to an inquiry addressed to it by the court, the British Foreign Office declared that Great Britain had, with certain reservations, recognized the Esthonian Government as a de facto and independent body, and had received certain persons as its formal diplomatic representatives, and that it was the opinion of the British Government that the Esthonian Government was qualified to establish a prize court. The court thereupon held that a writ of arrest on behalf of former Russian owners '48 Fed. Rep. 94.

8278 Fed. Rep. 294 (1920).

988 L. J. P. 101 (1919).

of a vessel, then in British waters, that had been seized and condemned as a prize of war by the Esthonian Republic, should be vacated.

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In The Annette 1o, decided at the same time, the status of the Provisional Government at Archangel was in question. Here the British Foreign Office had advised the court that "The Provisional Government of Northern Russia is composed of Russian groups who do not recognize the authority of the Russian Central Soviet Government established at Moscow. The seat of the Government is Archangel, and it extends its authority over the territory surrounding that port, and to the west of the White Sea up to the Finnish border. As the title assumed by that Government indicates, it is merely provisional in nature, and has not been formally recognized either by His Majesty's Government or by the Allied Powers as the Government of a sovereign independent State. His Majesty's Government and the Allied Powers are, however, at the present moment co-operating with the Provisional Government in the opposition which that Government is making to the forces of the Russian Soviet Government, who are engaged in aggressive operations against it, and are represented at Archangel by a British Commissioner. The representative of the Provisional Government in London is Monseiur Nabakoff, through whom His Majesty's Government conducts communications with the Archangel Provisional Government."

In the light of this communication the court held that the Archangel Government had not been so recognized as to give it a judicial locus standi.

Professor Borchard has criticized the holding of the New York court in The Russian Socialist Federated Soviet Republic v. Cibrario (supra) upon the ground that there are judicial means of proving the existence of a Govern1988 L. J. P. 107 (1919).

ment other than by political recognition, and, in support of this contention, cites the early case of Yrissarri v. Clement 11 in which Chief Justice Best, in his opinion, had said: "If a foreign State is recognized by this country, it is not necessary to prove that it is an existing State; but if it is not so recognized, such proof becomes necessary. There are hundreds in India, and elsewhere, that are existing States, though not recognized. I take the rule to be this,—if a body of persons assemble together to protect themselves, and support their independence, and make laws, and have courts of justice, that is evidence of their being a State. We have had, certainly, some evidence here today that these provinces [Chili] formerly belonged to Spain; but it would be a strong thing to say, that because they once belonged, therefore they must always belong. We have recognized lately some of these States. It makes no difference whether they formerly belonged to Spain, if they do not continue to acknowledge it, and are in possession of a force sufficient to support themselves in opposition to it."

As has been seen from cases already cited, the position of the court in this case is scarcely in harmony with the body of judicial opinion. However, there is force in the statement of Professor Borchard that "where the plaintiff de facto Government does not claim as the legal successor of a prior government or as the legitimate Government between two opposing factions, but as the legal owner of property in its own right, it would seem that political recognition is immaterial. If it can prove its existence as a de facto Government and a property owner and its title to the property claimed, there seems to be no valid reason why it should not receive the aid of the courts in the protection of its property."

In Wulfsohn v. Russian Socialist Federated Soviet Re"12 Car. & P. 223 (1825).