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Published online by Cambridge University Press: 12 April 2017
Six years ago, under the title “ Recent Recognition Cases,” the present writer reviewed a group of British and United States court decisions dealing chiefly with questions arising out of the withholding of political recognition from de facto foreign governments. Most of the decisions reviewed concerned the unrecognized governments of Mexico and of Russia. At the time of writing, the United States had recognized the Government of Mexico and Great Britain had recognized both the Government of Mexico and the Government of Russia, with the result that most of the problems presented in the so-called “ recognition cases” continued acute only in the United States and only with respect to Russia. Problems presented by the withholding of recognition from the Government of Russia are still acute in the United States in 1931, novel and interesting cases have been before the courts in the intervening years, and the end is not yet in sight. In the present paper it is proposed to bring the earlier review of this group of decisions up to date.
1 This journal , Vol. 19 (1925), p. 263.
2 The term “ recognition cases” is inexact and unsatisfactory. It has been used, for want of a better term, to describe a group of cases in which the granting or withholding of political recognition may be regarded conceivably as a fact to be considered by the court in making its decision.
3 See “ The United States and Russia,” Foreign Policy Association Information Service, IV, 477 (Feb. 20, 1929), and IV, 493 (March 6, 1929).
4 It will not be possible to review the literature. The following list, though incomplete, will indicate sufficiently the nature and scope of recent contributions: Andr6-Prudhomme,Grouber, Tager, Idelson, and Freund, “ La Revolution bolchevique et le statut juridique des Russes,” 51 Jour, du Droit Int. 5, 8, 28, 51 (1924); Cole, Recognition Policy of the UnitedStates Since 1901 (1928); Connick, , “ Effects of Soviet Decrees in American Courts,” 34 YaleL. Jour. 499 (1925)Google Scholar; Delehelle, La situation juridique des Russes era France (1926); , Erich, “ Lanaissance et la reconnaissance des itats ,” Acadimie de Droit International, Recueil des Cours(1926), III, 431 Google Scholar; Fraenkel, Digest of Cases on International Law Relating to Recognition ofGovernments (1925); Fraenkel, , “ The Juristic Status of Foreign States, Their Property andTheir Acts,” 25 Columbia L. Rev. 544 (1925)Google Scholar; , Gemma, “ Les gouvernements defait ,” Acadtmiede Droit International, Recueil des Cours (1924), III, 297 Google Scholar; Grouber, Tager, AndrtvPrudhomme,Freund, and Crane, “ La reconnaissance du Gouvernement SoviUique russe et le droit international,” 52 Jour, du Droit Int. 305, 307, 318,331,344 (1925); Habicht, “ The Applicationof Soviet Laws and the Exception of Public Order,” this Journal , Vol. 21 (1927), p.238; Henry, Les gouvernements defait devant lejuge (1927); Hervey, Legal Effects of Recognitionin International Law (1928); Houghton, “ Recognition in International Law,” 62Am. L. Rev. 228 (1928); Houghton, “ The Position of Unrecognized Governments Before theCourts of Foreign States,” 4 Indiana L. Jour. 519 (1929); Houghton, “ The Validity of the Acts of Unrecognized De Facto Governments in Courts of Non-Recognizing States,” 13Minn. L. Rev. 216 (1929); Lagarde, La reconnaissance du gouvemement des Soviets (1924); Larnaude, , “ Les gouvernements defait ,” 28 Rev. Gin. de Droit Int. Pub. 457 (1921)Google Scholar; Moyer,Attitude of the United States Toward the Recognition of Soviet Russia (1926); Nebolsine,“ The Recovery of the Foreign Assets of Nationalized Russian Corporations,” 39 Yale L.Jour. 1130 (1930); Van Roijen, De Rechtspositie en de Volkenrechtelijke Erhenning van Nieuwe Staten, en de facto-Regeeringen (1929); Spiropoulos, Die de facto-Regierung im Volkerrecht (1926); Tennant, “ Recognition Cases in American Courts,” 29 Mich. L. Rev. 780 (1931); Thormodsgard and Moore, “ Recognition in International Law,” 12 St. Louis L. Rev. 108 (1927); Trachtenberg, “ La situation ligale des sociitis russes en France,” 53 Jour, du Droit Int. 572 (1926); Williams, “ Recognition,” 15 Grotius Society Transactions, 53 (1930); Wright, “ The Russian Government in our Courts,” 11 Cornell L. Quart. 49 (1925).
5 Whether to grant or to withhold recognition is for the political department to decide.The political department's decision is conclusive in the courts. But it does not follow,as one writer seems to assume (Connick, op. tit., 501), that a decision to withhold recognitionmay be construed to prevent the courts from taking any account of the facts as they existunder a de facto though unrecognized government. See Russian Reinsurance Co. v. Stoddard(1925), 240 N. Y. 149 (commented on in this Journal , Vol. 19 (1925), p. 753); InlandSteel Co. v. Jelenovic (1926), 84 Ind. App. 373; Werenjchik v. Ulen Contracting Corporation(1930), 229 App. D. (N. Y.) 36, 240 N. Y. S. 619.
6 (1927) 21 F. (2d), 396, infra, p. 219.
7 (1929) 68 Ct. Cl. 32, infra, p. 221. See also United States v. Snyder (1930), 44 F. (2d),895.
8 Luther v. Sagor & Co. [1921] 3 K. B. 532; Oetjen v. Central Leather Co. (1918), 246 U. S. 297, Dickinson, Cases, 99.
9 (1925) 115 Tex. 32.
10 Ibid., 46
11 [1929] 1 K. B. 718.
12 (1929) 30 F. (2d), 278, infra, p. 219.
13 Inland Steel Co. v. Jelenovic (1926), 84 Ind. App. 373.
14 Kolundjija v. Hanna Ore Mining Co. (1923), 155 Minn. 176, commented on in this Journal , Vol. 19 (1925), p . 266.
15 Garvin v. Diamond Coal and Coke Co. (1924), 278 Pa. 469, commented on in this JOURNAL , Vol. 19 (1925), p . 267.
16 In a statement made Feb. 7, 1919, concerning the union of the Serbs, Croats and Slovenes, Secretary of State Lansing concluded: “ The Government of the United States, therefore, welcomes the union, while recognizing that the final settlement of territorial frontiers must be left to the peace conference for determination, according to the desires of the peoples concerned.” Official U. S. Bulletin, Feb. 8, 1919, p. 3. Cf. ibid., Sept. 3, 1918, p. 1, and 12 Am. Pol. Sci. Rev. 715, 718. And see Cole, op. cit., 65; Hudson, , “ Duration of the War Between the United States and Germany,” 39 Harv. L. Rev. 1020, 1043 Google Scholar.
17 84 Ind. App. 373, 376.
18 [1926] Ir. Rep. 531.
19 (1927) 129 Misc. 551. See comment in this Journal , Vol. 21 (1927), pp. 747, 753.
20 The total immigration from European Russia, all classes, for the year ending June 30, 1930, is reported as 6,558. See Annual Report of Commissioner General of Immigration, 1930, p. 150.
21 See Petition of Brooks (1925), 5 F. (2d), 238. See also Russian Volunteer Fleet v. United States (1931), U. S. Daily, Feb. 28, 1931, p. 8 (decided since this article was written).
22 Russians naturalized in the United States during the year ending June 30, 1930, are reported as 12,994. See Annual Report of Commissioner of Naturalization, 1930, p. 29. The Commissioner's reports for 1923-1930 show a total of 127,974 Russians naturalized in the United States during the eight-year period.
23 U. S. Department of Labor, Bureau of Naturalization, Form 102, 17th ed., Nov. 15, 1926. Earlier instructions to clerks of courts exercising jurisdiction in naturalization proceedings, dated Nov. 3,1921, Oct. 27,1922, and July 18,1923, required Russian nationals to renounce allegiance to “ the present Government of Russia.”
24 Ex parte Matthews (1921), 277 Fed. 857. See also Ex parte Jurgans (1927), 17 F. (2d), 507; Wenglinsky v. Zurbrick (1930), 38 F. (2d), 985. Cf. Pestereff v. Reed (1927) 7 Alaska
25 Wulfsohn v. Russian Socialist Federated Soviet Republic (1923), 234 N. Y. 372, commented on in this Journal , Vol. 19 (1925), p. 265.
26 Banque de France v. Equitable Trust Co. (1929), 33 F. (2d), 202, 207. Cf. Banco de la Lacuna v. Escobar (1929), 135 Misc. (N. Y.) 165, infra, p. 227.
27 (1929) 30 F. (2d), 278.
28 30 F. (2d), 278, 279.
29 (1927) 21 F. (2d), 396.
30 293 Fed. 133.
31 Ibid., 135.
32 21 F. (2d), 396. Certiorari denied, 275 U. S. 571.
33 See comment in 13 Cornell L. Quart. 297; 41 Harv. L. Rev. 102; 26 Mich. L. Rev. 800;Yale L. Jour. 360; F. P. A. Information Service, IV, 501 (March 6, 1929). See also Gemma, op. cit., 299; Henry, op. cit., 43.
34 “ It is interesting to note that the United States, which has not recognized the Soviet government, is second only to Germany in the export of goods to the Soviet Union, and now threatens to surpass it.” F. P. A. Information Service, VI, 364 (Dec. 10,1930). The progress of Soviet trade with the United States is summarized, op. cit., 376-384.
35 See note 18, supra. And see the advertisement published by Intourist, U. S. representative of the State Travel Bureau of the U. S. S. R., in the New York Times, Feb. 8, 1931.
36 (1925) 26 Ohio N. P. (N. S.), 81.
37 (1927) 244 N. Y. 482. See Wulfsohn v. Russo-Asiatic Bank (1926), 11 F. (2d), 715.
38 36 U. S. Stat. L. 1139.
39 (1923) 58 Ct. Cl. 180.
40 (1929) 68 Ct. Cl. 32.
41 68 Ct. Cl. 32, 33, 35. The Court of Claims did not consider the possibility that the Russian corporation might be entitled to sue, independently of § 155 of the Judicial Code, under the Act of 1917 authorizing the requisition of contracts for the construction of vessels. See 40 U. S. Stat. L. 182, 183. Since the above was written the United States Supreme Court has reversed the decision of the Court of Claims on the ground that the Act of 1917 expressly authorized the suit. Russian Volunteer Fleet v. United States (1931), U. S. Daily, Feb. 28, 1931, p. 8. Delivering the opinion of the court Chief Justice Hughes s a idNo r do we regard it as an admissible construction of the act of June 15,1917, to hold that the Congress intended that the right of an alien friend to recover just compensation should be defeated or postponed because of the lack of recognition by the Government of the United States of the regime in his country. A fortiori, as the right to compensation for which the act provided sprang into existence at the time of the taking, there is no ground for saying that the statute was not to apply, if at a later date, and before compensation was actually made, there should be a revolution in the country of the owner and the ensuing regime should not be recognized.”
42 “ See Katz, “ Federal Legislative Courts,” 43 Harv. L. Rev. 894, 904.
43 “ See, for example, Dalrymple v. Dalrymple, 2 Hagg. Consist. 54; Royal v. Cudahy Packing Co., 195 la. 759; Ex parte Suzanna, 295 Fed. 713.
44 “ See, for example, Wall v. Williamson, 8 Ala. 48; Roth v. Roth, 104 111. 35; Miller v. Miller, 70 Misc. (N. Y.), 368; Kapigian v. Minassian, 212 Mass. 412.
45 Nachminson v. Nachminson [1930] P. 85, 217.
46 It may be noted that substantially this view was taken by United States courts in cases involving the laws in force under rebel de facto governments in the Southern States during the American Civil War. In Texas v. White, 7 Wall. 700, 733, it was said that “ acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.” See Warren, The Supreme Court in United States History, III, 139; 22 Mich. L. Rev. 29,41. “ Certainly if the laws of a government of paramount force formed in open rebellion against the government of the United States are entitled to be treated as valid and binding in our courts in the determination of private and civil rights, there can be no reason for refusing under similar circumstances to enforce the decrees of the Soviet Government.” Connick, “ The Effect of Soviet Decrees in American Courts,” 34 Yale L. Jour. 499, 508. “ The every-day transactions of business or domestic life are not subject to impeachment, though the form may have been regulated by the command of the usurping government… . To undo them would bring hardship or confusion to the helpless and the innocent without compensating benefit. On the other hand, there is no shelter in such exceptions for rapine or oppression.” Cardozo, J., in Petrogradsky M. K. Bank v. National City Bank (1930), 253 N. Y. 23, 28. See 28 Mich. L. Rev. 750; 12 St. Louis L. Rev. 108, 113. Cf. Gemma, op. cit., 392; Henry, op. cit., 103; 38 Harv. L. Rev. 816.
47 It is not apparent to the present writer that the conclusion suggested is by any means a necessary consequence either of the statutory system or of the international system. It is suggested only that theoretical difficulties may be somewhat greater when the problem is approached from the statutist or internationalist point of view.
48 Treatise on the Conflict of Laws, 106. “ The forum, when confronted by a case involving foreign elements, always applies its own law to the case, but in doing so adopts and enforces as its own law a rule of decision identical, or at least highly similar though not identical, in scope with a rule of decision found in the system of law in force in another state or country with which some or all of the foreign elements are connected, the rule so selected being in normal cases, and subject to the exceptions to be noted later, the rule of decision which the given foreign state or country would apply, not to this very group of facts now before the court of the forum, but to a similar but purely domestic group of facts involving for the foreign court no foreign element. The rule thus incorporated into the law of the forum may for convenience be called the ‘ domestic rule’ of the foreign state, as distinguished from its rule applicable to cases involving foreign elements. The forum thus enforces not a foreign right but a right created by its own law.” Cook, “ The Logical and Legal Bases of the Conflict of Laws,” 33 Yale L. Jour. 457, 469. “ It always is the law of the United States that governs within the jurisdiction of the United States, even when for some special occasion this country adopts a foreign law as its own.” Holmes, J., in Uravic v. F. Jarka Co. (1931), 51 S. Ct. Il l , 112.
49 Banque de France v. Equitable Trust Co. (1929), 33 F. (2d), 202, 205.
50 See Jelinkova v. De Serbouloff, Pasicrisie beige (1926), III, 131, Annual Digest (192526), 29; Chiger v. Chiger (1926), 53 Jour, du Droit Int. 943, Annual Digest (1925-26), 26; Soviet Marriages in Hungary, Annual Digest (1925-26), 31.
51 “ Not everywhere—indeed only with us and in the United States—has the judiciary traditionally shown a bold front to the executive.” Grey, “ The Relations of the Executive and the Judiciary,” 15 Grotius Society Transactions, 139 (1930).
52 See Beale, Treatise on the Conflict of Laws, Ch. 3.
53 Buerger v. New York Life Assurance Co. (1927), 96 L. J. K. B. 930; Perry v. Equitable Life Assurance Society (1929), 45 T. L. R. 468.
54 Schinz v. High Court of Zurich, Annual Digest (1925-26), 32.
55 Dougherty v. Equitable Life Assurance Society (1929), 135 Misc. (N. Y . ), 103. This decision was reversed by the Supreme ourt, Appellate Division, Dec. 27, 1929, in a memorandum opinion, on the authority of Sliosberg v. New York Life Insurance o., 217 App. D. 685, and Sokoloff v. National City Bank, 239 N. Y. 158. But the cases upon which the Appellate Division relied were both cases of contracts made in the United States. It is submitted that the decision should have been affirmed.
56 Supra, p. 219.
57 (1928) 250 N. Y. 69. See the same case before the New York Court of Appeals on the pleadings, 239 N. Y. 158, Dickinson, Cases, 157; commented on in this Journal , Vol. 19 (1925), p. 269.
58 (1929) 135 Misc. (N. Y.), 165.
59 (1925) 115 Tex. 21.
60 Cf. O’Neill v. Central Leather Co. (1915), 87 N. J. L. 552. If the Villa revolt had succeeded and had received recognition, the result would have been otherwise, on the principle of retroactivity. Oetjen v. Central Leather Co. (1918), 246 U. S. 297; rrazas v. Holmes (1925), 115 Tex. 32, supra, p. 216
61 115 Tex. 21,27. See 4 Texas L. Rev. 226.
62 Etat russe v. Cie Russe de Navigation & vapeur et de Commerce (Ropit) (1925), 52 Jour, du Droit Int. 391, 53 ibid., 667, nnual Digest (1925-26), 25. Cf. Luther v. Sagor & Co. [1921] 3 K. B. 532, 557.
63 (1929) 33 F. (2d), 202.
64 33 F. (2d), 202, 206. After referring to Sokoloff v. National City Bank, 239 N. Y. 158 (commented upon in this Journal , Vol. 19 (1925), p. 269), and Banque de France v. Equitable Trust Co., supra, Williams, Sir John Fischer remarks: “ It would be interesting to see whether an English curt would follow the drift of these American decisions; manifestly grave injustice would result to private individuals from an attempt to affirm the invalidity of all dealings with private rights conducted according to the internal law of the unrecognized Government. And, after all, governments exist for the benefit of individuals, not individuals for the benefit of Governments. I venture the opinion that it would be found impossible to adopt unreservedly the view that all acts, executive or legislative, of an unrecognized Government must be regarded in the Courts of a non-ecognising Government as void.” 15 Grotius Society Transactions 53, 74 (1930)Google Scholar.
65 “ The revolutionary upheaval that occurred in Russia resulted in the complete disorganization of the normal life of Russian corporations. Directors and shareholders were forced to suspend their corporate activities. Corporate records were lost or destroyed, share certificates were confiscated. In exile, surviving directors and shareholders have met and attempted to reorganize themselves for the purpose of continuing to do business, or to recover the assets of the corporations in which they are interested. Under these strained and unusual conditions, representatives of the corporations come into court with no pretense at strict compliance with all the requirements of their corporate charter, by-laws, and the laws under which the corporation was organized. Meetings of directors and shareholders are held, if at all, away from the principal office; directors are frequently holding over beyond their appointed term; shareholders have difficulty in producing strict proof of their interest in the company, agents purport to act on the basis of powers granted by boards of directors the members of which may have died or disappeared long See Nebolsine, op. cit.; Rabinowitsch, “ Das amlandische Vermogen der in Sowjetruszland nalionalisierten Uniernehmungen,” 2 Ostrecht, 1168; Tiefenau, L’existence a Vitranger des soditis russes constitutes sous Vanden rigime el nationalisies par le Gouvernement des Soviets; Wohl, “ The Nationalization of Joint Stock Banking Corporations in Soviet Russia and Its Bearing on Their Legal Status Abroad,” 75 U. of Pa. L. Rev. 385, 527, 622.
66 Russian Commercial and Industrial Bank v. Comptoir D’Escompte de Mulhouse [1923] 2 K. B. 630: Banque Internationale de Commerce de Petrograd v. Goukassow [1923] 2 K. B. 682; and the same cases on appeal to the House of Lords [1925] A. C. 112, 150.
67 (1925) 239 N. Y. 248.
68 (1925) 240 N. Y. 368.
69 Cf. Banque Internationale de Commerce de Petrograd v. Hausner (1924), 52 Jour, du Droit Int. 488 (Federal Tribunal of Switzerland). Affirmed on rehearing, Journal des Tribunaux (1925), 529.
70 (1925) 240 N. Y. 149, Dickinson, Cases, 162.
71 Vol. 19 (1925), p. 753. See also 5 Boston U. L. Rev. 255; 11 Cornell L. Quart. 99; 39 Harv. L. Rev. 127; 52 Jour, du Droit Int. 1070; 35 Yale L. Jour. 98.
72 240 N. Y. 149, 158.
73 (1925) 240 N. Y. 601.
74 Cf. Judge Pound's dissenting opinion. Cf. also Severnoe Securities Corporation v. Westminster Bank (1925), 214 App. D. (N. Y.) 14.
75 (1928) 247 N. Y. 262.
76 247 N. Y. 262, 270.
77 (1930) 253 N. Y. 23.
78 253 N. Y. 23, 39.
79 “ If it is contrary to the public policy of the forum to aid in carrying out a wholesale dissolution and confiscation of assets of corporations outside of Russia, the courts should extend the exception of public order to refuse effect to such decrees both in respect to dissolution and confiscation, whether the state promulgating them has or has not been recognized. Once this step has been taken and the corporation is regarded as continuing in the forum for purposes of suit, the only problem remaining is for the court to determine that the party plaintiffs, directors, agents or shareholders of the corporation, appear in good faith and are the best available representatives of what remains of the corporation.” Nebolsine, “ The Recovery of the Foreign Assets of Nationalized Russian Corporations,” 39 Yale L. Jour. 1130,1161.
80 Application of People, by Beha, , Superintendent of Insurance (1930), 243 Google Scholar N. Y. S. 35.
81 243 N. Y. S. 35, 42.
82 Werenjchik v. Ulen Contracting Corporation (1930), 229 App. D. 36, 240 N. Y. S. 619.
83 240 N. Y. S. 619,620,621.
84 Cf. Request for an Advisory Opinion concerning the Status of Eastern Carelia (1923), Publications of the Permanent Court of International Justice, Series B, No. 5, p. 13.
85 See this Journal , Vol. 18 (1924), p. 147, Dickinson, Cases, 174.
86 (1926) Mex. U. S. Op. Gen. Cl. Com’n, p. 42, this Jo u r n a l , Vol. 21 (1927), p. 160.
87 (1927) Mex. U. S. Op. Gen. Cl. Com’n, p. 303.
88 See comment in this Journal , Vol. 20 (1926), p. 541.
89 Cf. The Gagara [1919] P. 95, Dickinson, Cases, 92; The Annette [1919] P. 105, Dickinson, Cases, 96; Luther p. Sagor & Co. [1921] 1 K. B. 456, [1921] 3 K. B. 532, commented on in 22 Mich. L. Rev. 29,130, and in this Journal , Vol. 19 (1925), p. 267; Inland Steel Co. v. Jelenovic, discussed supra, p. 216.
90 239 N. Y. 158,166, Dickinson, Cases, 157,160; this Journal , Vol. 19 (1925), p. 270. “ This statement is nothing else but an inversion of the exception of public order. Instead of saying Soviet decrees are law but they will not be enforced if in a given case it is against public order, the court says: Soviet decrees are not law; but, exceptionally, when such non-recognition would lead to a result in opposition to public order, these decrees, nevertheless, will be enforced like law.” Habicht, “ The Application of Soviet Laws and the Exception of Public Order,” this Journal , Vol. 21 (1927), p. 252.
91 Habicht, supra, note 90.