Secretary

re Spain and International Recognition

1. It seems fairly certain that General Franco's forces will succeed in capturing the Spanish capital at an early date. When that happens, a new Government will doubtless be set up in Madrid. Franco's Government may be expected to claim the de jure right to govern all Spain, whether occupied or not by his troops.

2. The Caballero Government,¹ which we at present recognise as the only legitimate Government of the Spanish Republic, will probably continue to function from Valencia or another Eastern town, despite any pretensions of Franco. That Government would, no doubt, also claim the exclusive de jure right to govern all Spain.

3. In such a state of facts we will be faced with three alternatives:-

1. that of continuing to recognise the old Government as the sole de jure and de facto Government of all Spain while ignoring any claim of Franco to govern from Madrid;
2. that of agreeing to recognise in the fullest sense Franco's Government, to the exclusion of all rival bodies claiming to rule the whole, or any part, of Spain;
3. that of compromising (and, perhaps temporising) between the two first mentioned alternatives, by continuing to recognise the old Government as the de jure Government of all Spain, while formally acknowledging that the de facto authority over a large part of Spain, including the metropolis, rests with the Franco administration.

4. As international recognition cannot be compelled by any new State, Government or régime, being a sovereign, unilateral act whose exercise depends entirely on the will of the State that accords it, we may consider ourselves perfectly free to adopt any one of the three alternatives set out above. Our future action will be therefore a matter of policy without reference to international law. Arguments and precedents for any steps we may decide to take are doubtless to be found in the legal text-books, but even those text-books do not regard such arguments or precedents as possessing more than a purely moral value.

5. For the foregoing reasons, it would seem likely that different States will adopt different attitudes in regard to the recognition or non-recognition of a new Madrid Government, due to their different home policies. Such States as the U.S.S.R. may adhere firmly to the first-mentioned alternative (of continuing to recognise only the old Government) long after the facts of the military situation have ceased to justify that course. Other States (Germany, Italy, etc.) may plump for the second above-mentioned alternative at an early date and so find themselves in the position of attributing exclusive jurisdiction over the whole Spanish peninsula to a new Government which may eventually fail to bring more than a portion of it under effective control. Finally, a number of States (notably Great Britain) will play for safety by choosing the third alternative, namely, that of recognising Franco's de facto status, or in the phraseology of the text-book writers, according his Administration the equivalent of a 'recognition of their belligerency'. We have reason to believe that Britain will grant such ￿recognition' on the fall of Madrid, but that again will be due to a mere political decision. General Franco's belligerency might just as well have been recognised by Britain at an earlier date or it could be postponed indefinitely or pending a contingency without infringing any international law, practice or precedent.

6. It is scarcely necessary to discuss the respective international consequences of non-recognition, recognition and de facto recognition (or recognition of belligerency). The consequences that result on non-recognition might be illustrated by reference to the 'Burgos Government', which the Great Powers have so far completely ignored; those that flow from full international recognition are too well-known to require emphasis. In regard, however, to the intermediate phase known as 'recognition of belligerency', it seems well at least to mention that such 'recognition' entails a duty of neutrality vis-á-vis the recognised party to the same extent as that duty may be observed vis-á-vis such party's opponents. Owing to the Non-Intervention Committee's virtual enforcement of a plan of neutrality vis-á-vis all parties in Spain, the States who are members of the Committee are in a position to recognise Franco's belligerency without being compelled to alter their present policy regarding the export of arms, etc. to Spain.

7. In conclusion, it may be pointed out that the question of recognition in connection with Spain does not involve the Statehood of that country which is, of course, in no doubt. The recognition to be considered, whether requested or not, will be merely recognition of a new Government. This kind of recognition is generally distinguished by international writers from the recognition of a new State.

Oppenheim ('International Law', 4th Edition, Vol. I., pp. 152-3) writes: 'Every other State has a discretion whether to recognise the new Head or Government or not, and recognition will by no means be granted as a matter of course. The main point on which a State faced with the problem of granting or withholding recognition will wish to satisfy itself is the prospect of stability of the new Head or Government; for in the event of a successful counter-revolution a precipitate recognition of the new defeated Head or Government does not conduce to cordial relations with the restored Head or Government. But although the prospect of stability is the main factor and logically the nature of the means by which the new Head or Government climbed into power may be irrelevant, it is usually impossible, for political reasons, for those responsible for the decision whether to grant recognition or not to exclude the question of the means employed from consideration. Partly on this account it is often found easier to grant de facto recognition rather than de jure recognition.'

Although one may not accept Oppenheim's view that the 'means' adopted by revolutionaries should influence the action of foreign Governments in their regard, his general statement that de facto recognition is often found ￿easier' to grant than de jure recognition cannot be denied. There can be but little doubt that, in the case of Spain, the safest course will be generally thought to be that indicated in Oppenheim's final paragraph, and only States which are suffering under extraordinarily powerful home pressure will be inclined to grant General Franco's Madrid Government full de jure recognition from the beginning of its reign.