RECOGNITION Recognition of a State vs Recognition of a Government:

Recognition – an act by which a state (1) acknowledges the existence of another state, a State Government
government or belligerent community and (2) indicates its willingness to deal with the entity 1. Includes the recognition of its 1. Does not necessarily signify the existence
as such under the rules of international law government as latter is an essential element and recognition of a state as such
of the former government may not be independent
Who has the Power of Recognition under the Constitution? 2. Generally irrevocable 2. May be withdrawn

President of the Philippines – by virtue of his authority to send and receive diplomatic Recognition of States – free act by which one or more states acknowledge the existence of
representatives, to enter into treaties, to establish blockades, and in general to act as the another state, and which they manifest their intention to consider it a member of the
foreign policy spokesman of the nation. international community.

Nature (Theories) on Recognition: Recognition of Governments – free act by which one or several states acknowledge that a
a. Constitutive (Minority View) person or group of persons is capable of binding the state which they claim to represent and
- Recognition is the act which constitutes the entity into an international person witness their intention to enter into relations with them.
- It is the act of recognition that constitutes the recognized entity into an
international person and that such act may be compelled once the elements of Requirements for Recognition of Government:
international personality are established 1. The government is stable and effective, with no substantial resistance to its authority
2. Government must show willingness and ability to discharge its international
b. Declarative (Majority View/Theory) obligations
- Recognition merely affirms an existing fact, like the possession by the state of 3. Government must enjoy popular consent or approval of the people
the essential elements, and that it may be granted or withheld at pleasure
a. Tobar/Wilson Doctrine
Forms of Recognition: - Doctrine which precludes recognition of any government established by
1. Express – verbal or in writing – May be made through a formal proclamation, a revolutionary means (revolution, civil war, coup d’état other forms of internal
stipulation in a treaty, a letter or telegram, on occasion of an official call violence) until the freely elected representatives of the people have organized a
2. Implied – the recognizing state enters into official intercourse with the new member constitutional government
by exchanging diplomatic representatives with it, concluding with it a bipartite
treaty dealing comprehensively with their relations in general or acknowledging its b. Stimson Doctrine
flag or otherwise entering into formal relations with it. - Doctrine precludes the recognition of any government established as a result of
- Ex: In the case of the belligerent community – the recognition by the legitimate external aggression
government is implied when it blockades a port held by the former
- Ex: Other states may manifest recognition by observing neutrality in the c. Estrada Doctrine
conflict - [Since recognition has been construed as approval or disapproval] Under this
doctrine, the diplomatic representatives in a country where a political upheaval
What is the effect of common membership in the United Nations of states not recognizing has taken place will deal or will not deal with whatever government is in
each other? control therein at the time and either action shall not be taken as a judgment on
the legitimacy of the said government
In practice, such states are deemed to recognize each other only within the organization and
not elsewhere. Kinds of Recognition of a Government:
- Ex: The Philippines and Soviet Union dealt with each other within the UN, of which
are both charter members – but did not otherwise maintain diplomatic relations, until 1. De jure – Recognition extended to a government fulfilling the requirements for
they expressly recognized each other in 1975. recognition

Basic Rules on Recognition: 2. De facto – Recognizing state believes that some of the requirements for recognition
1. It is a political act and mainly a matter of policy on the part of each state are absent
2. It is discretionary on the part of the recognizing authority
3. It is exercised by the political (executive) department of the state 3 Kinds of De Facto Government:
1. That which is established by the inhabitants who rise in revolt and depose the
- The legality and wisdom of recognition – not subject to judicial review legitimate regime
 2. That which is established by the invading forces of one belligerent in the territory of
the other belligerent, the government of which is also displaced One China policy - is a policy saying that there is only one country of China, despite the fact
3. That which is established by the inhabitants of a state who secede therefrom without that there are two governments - the People's Republic of China (China) and the Republic of
overthrowing its government China (Taiwan)
- It is the diplomatic acknowledgement of China's position that there is only one Chinese
Distinguish Between Recognition of a De Facto Government and Recognition of a De government.
Jure Government - Under the policy, the US recognizes and has formal ties with China rather than the
island of Taiwan, which China sees as a breakaway province to be reunified with the
De Jure De Facto mainland one day.
1. Relatively permanent 1. Provisional - Taiwan is not recognized as an independent country by much of the world nor even the
2. Vests title to the properties of the 2. Does not United Nations. It undergoes extraordinary naming contortions just to participate in
government abroad events and institutions like the Olympic Games and the World Trade Organization.
3. Brings about full diplomatic relations 3. Limited to certain judicial relations - “THERE is only one China in the world, and Taiwan is part of China,” declared
China’s foreign minister, Wang Yi, at a news conference in Beijing on March 8th. That
Is non-suability an effect of the recognition of a state or government? is not quite the way that Taiwan sees it. At least, Taiwan does not accept that it is part
of the People’s Republic of China, with its capital in Beijing.
No, because whether a government is recognized or not, it would enjoy immunity from suit in - It is hard to argue that Taiwan is anything other than a separate country. The island has
a foreign jurisdiction its own, democratically elected, president. It has its own laws and its own armed
- To cite a “foreign sovereign in the municipal courts of another state” would be “an forces. But its official name is the Republic of China (ROC). It has a notional claim to
insult which he is entitled to resent” and would “vex the peace of nations” the area that is now described as the People’s Republic.

3 Stages of Internal Dissention: How did it come about?

1. Lawlessness
2. Insurgency – when lawlessness spreads and develops a political motivation The policy can be traced back to 1949 and the end of the Chinese civil war. The defeated
3. Belligerency – aggravation of insurgency Nationalists, also known as the Kuomintang, retreated to Taiwan and made it their seat of
government while the victorious Communists began ruling the mainland as the People's
Distinctions between Insurgency and Belligerency: Republic of China. Both sides said they represented all of China.

Insurgency Belligerency Since then China's ruling Communist Party has threatened to use force if Taiwan ever formally
1. Initial stage of a belligerency 1. More serious and widespread declares independence, but it has also pursued a softer diplomatic track with the island in
2. Directed by military authorities 2. Under a civil government recent years.
3. Not usually recognized 3. May be recognized
THE VATICAN CITY/HOLY SEE
Recognition of Belligerency
Holy See - central governing body of the entire Roman Catholic Church located within the
Vatican City
Usual conditions for the recognition of the status of belligerency:
- Independent sovereign entity and the top spiritual governing body. The Bishop of
1. Organized civil government having control and supervision over the armed struggle
Rome rules through the Roman Curia.
2. Serious and widespread struggle with the outcome uncertain
- The International bodies recognize the Holy See as a sovereign body, capable of
3. Occupation of a substantial portion of the national territory
diplomatic relations with other countries and have the permanent observer status in
4. Willingness on the part of the rebels to observe the rules/customs of war
meetings of the United Nations.
- Unlike Vatican City which became a state in 1929, the Holy See came into existence
Effects of Recognition of Belligerency:
during the early church days and is an eternal establishment which is not dissolved
1. Responsibility for acts of rebels resulting in injury to nations of the recognizing state
upon the death of the Pope.
– shall be shifted to the rebel government
- The Republic of the Philippines has accorded the Holy See the status of a foreign
2. Legitimate government recognizing the rebels shall observe the laws of war in
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had
conducting hostilities
diplomatic representations with the Philippine government since 1957
3. Third states recognizing the belligerency shall maintain neutrality
4. Recognition is only provisional (for the duration of the armed struggle) and only for
Vatican City - smallest country in the world established by the Lateran Treaty of 1929
purposes of hostilities
between the Kingdom of Italy and the Holy See to ensure the temporal, diplomatic, and
spiritual independence of the Papacy. As such, ambassadors are officially accredited to the
ONE CHINA POLICY
Holy See and not the Vatican City State.
 - one that has full freedom in the direction of its affairs, both domestic and
Effects (Legal Consequences) of Recognition: foreign
1. Diplomatic relations a. Simple state – one where the direction of domestic and foreign affairs is placed
2. Right to sue in the courts of recognizing states in a single central authority
3. Immunity from jurisdiction b. Composite state – 2 or more sovereign states joined together to constitute one
4. Entitlement to property within the recognizing state international person
5. Retroactive validation of the acts of the recognized state/government such as acts of i. Real Union – two or more states are merged under a unified authority
state – sovereign immunity covers past, present and future acts so that they form a single international person through which they act as
one entity
ii. Federal Union – combination of 2 or more states which, upon merger,
STATE CONTINUITY cease to be states, resulting in the creation of a new state with full
international personality to represent them in their external relations as
State – a group of people, more or less numerous, permanently living in a definite territory, well as a certain degree of power over their domestic affairs and their
under an independent government organized for political ends and capable of entering into inhabitants
legal relations with other states
2. Dependent state – an entity which, although theoretically considered a state, does
Essential Elements of a State: not have full freedom in the direction of its external affairs
a. Protectorate – established at the request of the weaker state for the protection
1. People – Inhabitants of a state. They are regarded as a single unit and must come by a strong power
from both sexes so as to be able to perpetuate themselves b. Suzerainty – the result of a concession from a state to a former colony that is
- No legal requirement regarding the size of a state’s population – but for allowed to be independent subject to the retention by the former sovereign of
practical purposes, it is desirable that the population be big enough to be able to certain powers over the external affairs of the latter
sustain itself and maintain its security and small enough to be easily governed
3. Neutralized state – whose independence and integrity are guaranteed by an
2. Territory - Fixed portion of the surface of the earth on which the population of a international treaty on the condition that such state obligates itself never to take up
state resides. It must be fixed so that the jurisdiction of the state may be ascertained arms against any other state [except in self-defense], or to enter into an international
- Legally, the size of the territory does not matter as long as the state is able to obligation as would indirectly involve it in war
comply with its international obligations – However, it should be big enough to
be able to provide for the needs of the inhabitants and small enough to be easily Principle of State Continuity – the state continues as a juristic being notwithstanding
administered changes in its circumstances, provided only that such changes do not result in the loss of any
of its essential elements
3. Government – agency through which the will of the state is formulated, expressed
and realized. In international law, it is the instrumentality that represents the state in a. Succession of States – the substitution of one state by another, the latter taking over
its dealings with other international persons the rights and some of the obligations of the former [may be universal or partial]
- No particular form of government is required of a state – The important thing is i. Universal succession – takes place when a state is completely annexed by
that it is able to observe its obligations under international law another, or is dismembered or dissolved, or is created as a result of the merger of
2 or more states
4. Sovereignty – power of the state to administer its external affairs without direction ii. Partial succession – takes place when a portion of the territory of a state is ceded
or interference from another state or secedes or when the state loses part of its sovereignty by joining a
confederation or becoming a protectorate or suzerainty
A State may be Created or Exist in these Ways:
1. By peaceful acquisition of independence [Ex: Phil.] Effect of State Succession:
2. By revolution [Ex: USA] 1. The allegiance of the inhabitants of the predecessor state is transferred to the
3. By unification of several states [Ex: Italy] successor state
4. By secession [Ex: Bangladesh] 2. The political laws of the predecessor state are automatically abrogated but the non-
5. By agreement [Ex: Netherlands] political laws are deemed continued unless expressly repealed or contrary to the
6. By attainment of civilization [Japan] institutions of the new sovereign
3. The public property of the predecessors state is acquired by the successor state but
Classes of States: not the tort liability and, in some cases, the contractual liability of the former
1. Independent state – one that has freedom to direct and control foreign relations 4. Treaties entered into by the predecessor state are not considered binding on the
without restraint from other states successor state except those dealing with local rights and duties such as servitudes
and boundaries
 CASES
b. Succession of Governments – the substitution of one government by another – the
integrity of the State is not affected; the state continues as the same international 1. The Sapphire
person except that its lawful representative is changed
Gist: Emperor Louis Napoleon filed a damage suit on behalf of France in an American court,
Consequences of Government Succession: but he was deposed and replaced as head of state pendente lite.
1. All rights of the predecessor government are inherited by successor
2. All obligations of the predecessor are likewise assumed His action in filing a damage suit was not abated because it had in legal effect been filed by
France, whose legal existence had not been affected by the change in the head of its
Is the State Immortal? government. Napoleon had sued not in his personal capacity but officially as sovereign of
France. Hence, upon recognition of the duly authorized representative of the new government,
The state is immortal only as long as it has people, territory, government, and sovereignty. – If the litigation could continue.
any or all of these elements disappear, the state itself is extinguished, or dies.
Facts: In the morning of December 22, 1867, French vessel Euryale had a collision with the
How may a State be extinguished? American vessel Sapphire. The Emperor of the French, Emperor Louis Napoleon, the owner
of Euryale, filed a suit in his name against the owners of The Sapphire in a California court, a
1. Natural causes civil claim for damages in connection with the collision. Through appeals, the case reached the
a. Its population dies (e.g. epidemic) Supreme Court. However, Emperor Louis Napoleon was deposed in 1870 while the case was
b. Territory is lost (e.g. volcanic eruption) still pending.
2. Artificial means
a. Anarchy Issue: Whether the suit has been abated or extinguished by the recent deposition of the
b. Mass emigration of the population Emperor
c. Annexation
d. Merger or unification Ruling: No. The US Supreme Court says: The reigning sovereign represents the national
e. Dismemberment sovereignty, and the sovereignty is perpetual and continuous. On the deposition of the
f. Dissolution of a federal union Emperor, sovereignty did not change but merely the person or persons to whom it resides. A
g. Partial loss of independence (suzerainty or protectorate) change in such representative works no change in the national sovereignty or its rights. In the
case at bar, the next successor recognized by the government is competent to carry on a suit
Colonies and Dependencies already commenced and receive the fruits of it.

Colony – a dependent political community consisting of a number of citizens of the same 2. Luther vs Sagor
country who have migrated therefrom to inhabit another country, but remain subject to the
mother State Principle: Once a government is recognized, its acts will be granted validity, even those prior
to its recognition, known as retrospective effect
Dependency – a territory distinct from the country in which the supreme sovereign power
resides, but belongs rightfully to it, and subject to the laws and regulations which the The Courts of this country will not inquire into the validity of the acts of a foreign government
sovereign may prescribe which has been recognized by the Government of this country. In this respect it is all one
whether the foreign government has been recognized as a government de jure or de facto.
Territories under International Control or Supervision
- Non-self-governing territories which have been placed under international supervision Facts: The Russian Socialist Federal Soviet Republic passed a decree in June 1918, declaring
or control to insure their political, economic, social and educational advancement all mechanical sawmills of a certain capital value and all woodworking establishments
belonging to private or limited companies to be the property of the Republic. Luther was a
Ex: British Citizen used to run a timber industry in Soviet Russia. In 1919 agents of the Republic
1. Mandates – former territorial possessions of the states defeated in World War I and seized the Luther’s mill or factory in Russia and the stock of manufactured wood therein. In
placed under the control of the League of Nations August 1920, agents of the Republic sold a quantity of the stock seized to Sagor, who
2. Trust Territories – mandates that are placed under the Trusteeship Council of the imported it into England. Luther claimed a declaration that these goods were their property.
United Nations The plaintiffs contended that the so called Republican Government had no existence as a
3. Condominium – a territory jointly administered by two states government, that it had never been recognized by His Majesty's Government. And also, the
decree of the so-called government nationalizing all factories, as a result of which their goods
were seized is not valid, and is not a decree which the Courts of this country would recognize.
In 1921, the Soviet Government was recognized by His Majesty’s Government as the de facto
Government of Russia. "Recognition is not necessarily express; it may be implied, as when a state enters into
negotiations with the new state, sends its diplomatic agents, receives such agents officially,
Issue: Whether the decree passed by the Republic Government of Russia valid gives exequaturs to its consuls, forms with it conventional relations."

Ruling: Held, that the Government of this country had recognized the Soviet Government as The judgment of the court below must therefore be reversed. The appellant contends that it is
the de facto Government of Russia existing at a date before the decree of June, 1918; that entitled to a reversal and to a judgment in its favor; but with this latter contention we are
therefore the validity of that decree and the sale of the wood to the defendants could not be unable to agree. The plea in abatement was sustained at the threshold, and the defendant was
impugned, and that the defendants were therefore entitled to judgment. Even though, the acts never called upon to answer to the merits.
complained of were all done before the Russian Soviet Republic was recognized, still the
recognition has retrospective effect. And it does not matter whether the recognition is de facto 4. Oetjen vs Central Leather Co.
or de jure, as both would have retrospective effect. In either case the recognition validates acts
done by the government from the time when it can be ascertained as the government which is Facts: Certain hides in Mexico belonging to the plaintiff (Oetjen?) were seized by the
subsequently recognized. After it has been recognized its acts cannot be questioned in a Court Carranza government, then engaged in civil war, and sold to an American firm which brought
of law. them to New Jersey. Here an action for recovery (replevin) was filed by the plaintiff on the
ground that the seizure was invalid. At that time of this seizure, the Carranza government
3. Republic of China vs Merchants’ Fire Assurance Corp. controlled about 2/3 of Mexico but there was no government in that country recognized by the
United States. However, the United States, on October 19, 1915, recognized the Carranza
Facts: The Republic of China commenced an action in the United States Court for China to regime as a de facto government, and, on August 31, 1917, as the de jure government of
recover a fire loss under a policy issued by the Merchants' Fire Assurance Corporation of New Mexico.
York to the Chinese Government Telephone Administration at Wuchang, a department of the
Republic of China, covering a building occupied by the Telephone Administration. After the Ruling: When a government which originates in revolution or revolt is recognized by the
policy issued and after the fire loss occurred, the military forces of the national government political department of our government as the de jure government of the country in which it is
captured the city of Wuchang and became the custodian of the policy and the property covered established, such recognition is retroactive in effect and validates all the actions and conduct
thereby. At the time of the commencement of this action, the National Government was in of the government so recognized from the commencement of its existence.
control in 15 of the 18 *279 provinces of China, comprising about three-fourths of its total
area, but had not as yet been recognized by the United States. The principle that the conduct of one government cannot be successfully questioned in the
courts of another is applicable to a case involving the title to property brought within the
The insurance company appeared specially in the court below, and filed a plea in abatement on custody of the court, such as we have here, as it was held to be the cases cited, in which claims
the ground that the plaintiff was not the Republic of China, but was a revolutionary for damages were based upon acts done in a foreign country, for it rests at last upon the
organization known as the National Government of China, unrecognized by the government of highest considerations of international comity and expediency.
the United States of America, and was without legal capacity to sue. The plea in abatement
was sustained, and from the judgment of dismissal this appeal is prosecuted. 5. Government of Spain vs SS Arantzazu Mendi and others

Ruling: The courts of this country cannot recognize the existence of a government which Principle: When there is effective control over the territory of a government of de facto
originates in revolution or revolt, until it has first been recognized by the political department recognition, a foreign court cannot apply its jurisdiction over its matter
of the government, and inasmuch as there had been no such recognition of the National
Government of China at the time of the trial in the court below, it would seem to follow that Facts: During the Spanish Civil War, the UK recognized de jure the Republican Government
that government had no existence in contemplation of law and no legal capacity to sue in the of Spain, but also recognized de facto the rebel government (the Nationalists). Both
courts of this country. But since the trial below, there has been a material change in the governments sued in British courts to control the Spanish-flagged vessel Arantzazu Mendi
situation, and of this change we must take judicial notice. when it arrived in the British port.

On July 25, 1928, the Envoy Extraordinary and Minister Plenipotentiary to China, appointed Issue: Whether the Republican government shall have the right to possess the ship
by the President of the United States, and the Minister of Finance, appointed by the National
Government of the Republic of China, entered into a treaty of commerce; and while this treaty Ruling: It was held that a de facto government has control over state assets within the territory
has not as yet been ratified by the Senate, it contains a clear recognition by the Executive it controls. A de jure government has control even over state assets abroad.
Department of this government of both the National Government of the Republic of China and
of its accredited representative. This recognition by the Executive Department would seem to It was held by the House of Lords that since the Nationalist was a de facto recognized
satisfy the requirements of the law; but, if this is not enough, we have been advised by a sovereign ineffective contract over a large portion of Spain, it was immune from the
telegram from the Secretary of State that the Minister Plenipotentiary and Envoy jurisdiction of the local courts of other sovereigns
Extraordinary of the National Government of China has been officially received by this
government, so that the recognition of the former is now settled beyond question. 6. The GAGARA
 arises in this action, they would not be acting in accordance with what was pointed out in The
Facts: The plaintiff company purchased the Gargara in 1914, and she was registered in the Parlement Belge (1) as being the principle of international comity, and that there would be a
name of the company as owners at Petrograd under the Russian merchant flag. During the divergence of action as between the Courts of this country and the statements that have been
earlier part of the war the vessel was under some form of requisition in the service of the made by the Government of the country as to the attitude which this country was prepared to
Imperial Government, and afterwards, by arrangement with the company, in the service of the take.
succeeding Government. The Bolshevik Government having come into power, on June 21,
1918, declared the whole of the Russian mercantile fleet to be national property and ordered Appeal dismissed.
the Gargara, then lying at Petrograd, to be repaired. In the autumn of 1918 the Bolshevik
Government loaded a cargo of wood on the vessel, and sent her on a voyage to Copenhagen 7. United States of Mexico vs Viamonte Fernandez
under the captain who had originally been appointed by the company together with some of
the old crew and others put on board by the Bolshevik Government. In the course of this 8. The Spanish Government vs Felipe Campuzano
voyage it appeared that the Gargara put into Reval, where she was captured by the Esthonians.
9. Lehigh Valley Railroad vs State of Russia
From the affidavits filed on behalf of the Esthonian Government it appeared that the Gargara
was flying the red flag of the Bolshevik Government and she was accordingly condemned as Principle: Recognition of regimes in law
prize of war, not by bringing her before a Prize Court, but by a decree of the Government. She
was then, under the name of the Kajak, registered at Reval as of Esthonian nationality and Summary: Provisional Russian government after WWI (not the Bolshevik communist gov.-
subject to the ownership of the Esthonian Republic. A new master was appointed by the nor recognized by US) sues LVRCo for explosion that cause loss of a shipment to Russia i.e.
Esthonian Provisional Government, and by their instructions a bill of lading, dated December property of the state of Russia, Kerensky gov (recognized by US) deposed by Bolshevik in
13, 1918, was signed by him for the cargo shipped by that Government to be delivered in 1917, but Bakhemeteff (official rep of Kerensky gov) initiated suit, LVRCo moved for
London to their representative. The vessel, manned by a crew appointed by the Esthonian dismissal of suit arguing that b/c gov. no longer exercised power there was no standing to
Government, then left under the Esthonian flag for London, where she arrived late in initiate suit on behalf of Russia
December.
Ruling and Reasoning: Bakhemeteff had standing; US gov. recognized him as the
Issue: Whether the Esthonian National Council has been recognized by the Government of representative of the state of Russia and all property and interests of Russia in the US, suit was
this country as having the status of a foreign Sovereign. initiated by a recognized regime

Ruling: There is a great distinction between mere recognition for the time being of a 10. Haile Selassie vs Cable and Wireless LTD
Government and recognition of a State with sovereign powers.

“The principle to be deduced from all these cases is that, as a consequence of the absolute
independence of every sovereign authority, and of the international comity which induces
every sovereign State to respect the independence and dignity of every other sovereign State,
each and every one declines to exercise by means of its Courts any of its territorial jurisdiction
over the person of any sovereign or ambassador of any other State, or over the public property
of any State which is destined to public use, or over the property of any ambassador, though
such sovereign, ambassador, or property be within its territory, and therefore, but for the
common agreement, subject to its jurisdiction.”

Government of Italy – has for the time being provisionally, and with all necessary reservations
as to the future, recognized the Esthonian National Council as a de facto independent body,
and accordingly has received a certain gentleman as the informal diplomatic representative of
that Provisional Government. The state of affairs is of necessity provisional and transitory.
The matter remains to be determined in the way that has been described.” Junior counsel for
the Treasury, at a later stage, said: “If it will assist the Court – I am sorry the Attorney-General
is not here now – but I have had the opportunity of putting to him the point which has arisen,
and I have his authority for stating to the Court that, in the present view of His Majesty’s
Government, and without in any way binding itself as to the future, the Esthonian Government
is such a Government as could, if it thought fit, set up a Prize Court.”
Reading these deliberate statements of the Law Officers of the Crown, as expressing the
attitude of the Government towards this Esthonian National Council, I cannot but feel that if
the Court claimed to exercise, and did exercise, jurisdiction in respect of such a dispute as
11. State of Netherlands vs Federal Reserve Bank

------

1. Tinoco Arbitration

Brief Fact Summary: The Tinoco regime, which was the former government of Costa Rica,
was alleged by Great Britain to have granted oil concession to a British company that had to
be honored by the present regime.

Synopsis of Rule of Law: A government need not conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration and non-
recognition of the government by other government does not destroy the de facto status of the
government.

Facts: The Tinoco regime that had seized power in Costa Rica by coup was not recognized by
Great Britain and the United States. When the regime was removed, the new government
nullified all Tinoco’c contract including an oil concession to a British company. The claim of
Great Britain (P) was that the contract could not be repudiated because the Tinoco government
was the only government in existence at the time of the contract was signed. This view was
not shared by Costa Rica (D) who claimed that Great Britain (P) was estopped from enforcing
the contract by its non-recognition of the Tinoco regime. The matter was sent for arbitration.

Issue: Does a government need to conform to a previous constitution if the government had
established itself and maintained a peaceful de facto administration and does non-recognition
of the government by other government destroy the de facto status of the government?

Ruling: (Taft, C.J., Arb). No. A government need not conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration and non-
recognition of the government by other government does not destroy the de facto status of the
government. The non-recognition of the Tinoco regime by Great Britain did not dispute the de
facto existence of that regime. There is no estoppel since the successor government had not
been led by British non-recognition to change its position.

Discussion: Estoppel was not found by the arbitrator. The evidence of the de facto status of
the Tinoco’s regime was not outweighed by the evidence of non-recognition. This implies that
valid contracts may be formed by unrecognized government.
2. U.S. (George Hopkins Claim) vs United Mexican States must show either that the particular proposition put forward has been recognized and acted on
by England or that it is of such a nature and has been so widely and generally accepted that it
3. Robert E. Brown Claim can hardly be supposed that any civilized state would repudiate it. The mere opinions of
jurists, however eminent or learned, that it ought to be so recognized, are not in themselves
4. West Rand Central Gold Mining vs The King sufficient. They must have received the express sanction of international agreement or have
gradually grown to be a part of international law by their frequent practical recognition in
Facts: The Company was a British concern operating a gold mine in the Transvaal, South dealings among various nations. “The expression ‘the law of nations forms a part of the law of
Africa. In October 1899, a quantity of gold valued at £3,804 was seized from the company by England,’ ought not to be construed so as to include as part of the law of England opinions of
officials of and by order of the South African Republic. The company claimed that under the text writers upon a question as to which there is no evidence that Great Britain has ever
laws of the Republic, the government had to return to the owners either the seized gold or its assented, and a fortiori if they are contrary to the principles of her laws as declared by her
value. Neither action was taken, however, as the South African Republic was conquered in the Courts.”
war that started in October 1899 and became a part of the British Empire under the terms of a (3) The obligations of conquering states with regard to private property, particularly land as to
proclamation dated September 1, 1900. The company sought to recover the gold or its value which the title was perfected before conquest, are entirely different from obligations arising
from the British government by a petition of right, arguing that the government had succeeded out of personal contracts. Cession of territory does not mean the confiscation of private
to all duties, rights, property, and obligations of the defunct South African Republic by virtue property of individuals. The question of the adoption by the conquering state of contractual
of the conquest and annexation of that republic. obligations of the conquered state toward individuals is an entirely different matter.

Issues: (1) Whether under international law the sovereign of a conquering state is liable for 5. Phil. Sugar Estates Devt Co Ltd vs The United States
the obligations of a conquered state;
(2) Whether international law forms part of the law of Great Britain; Facts: When Spain ceded the Philippine Islands to the United States large tracts of agricultural
(3) Whether the rights and obligations which were binding on the conquered state had to be lands were owned by the great religious orders. For political reasons it was deemed advisable
protected and could be enforced by the domestic courts of the conquering state. that our government should acquire the Friar lands and sell them to tenants in small holdings
on easy terms. Lengthy negotiations conducted to that end by the Civil Governor were
Decision Judgment for the Crown: concluded in 1903. Most of the lands owned by the Dominicans, amounting to 60,461
(1): The sovereign of a conquering state is free to decide which obligations of a conquered hectares, had been conveyed to the Philippine Sugar Estates Development Company, Limited;
state are to be accepted as a liability of the conquering state. and with that corporation a contract of sale and purchase was executed by the Government of
(2): Only such parts of international law as have either been accepted by Great Britain or as the Philippine Islands under date of December 22, 1903. The agreement covered eight
have been so widely accepted that it could not be supposed that any civilized state would haciendas including that of Calamba in the province of Laguna, said to contain 16,424
repudiate them, form a part of the law of England. hectares and 14 ares. Owing to delays incident to resurveys and perfecting of titles, the deed of
(3): Domestic courts of a conquering state cannot exercise jurisdiction over matters that fall the Calamba estate was not delivered until October, 1905, when the purchase price,
properly under the jurisdiction of the government and that are determinable by treaty or by act 1,385,443.29 pesos, was paid and possession taken by the grantee.
of state; rights claimed under such matters cannot be enforced by domestic courts of the
conquering state. Later the Philippine Government learned that the grantor had removed certain sugar mill
machinery and the rails of a light railroad which had formerly been upon the estate. The
Reasoning: (1) Passages from various writers on international law were cited in support of contract made no mention of sugar mills, machinery, or railroad; but it contained, after the
issue 1, but in many instances their pronouncements must be regarded as their views as to description of the estates and specified properties to be conveyed, the words, 'and all other
what ought to be, from an ethical standpoint, rather than the statement of a rale or practice so improvements'; and these words were also in the deed. The government, claiming that the
universally approved as to constitute law among independent nations. machinery and railroad were covered by this and other clauses and passed as part of the realty,
The proposition that a conquering state should assume, under international law, the obligations brought suit, in 1906, against the company in the Court of First Instance of Manila for their
of a conquered country cannot be sustained. When making peace, the sovereign of the value, alleged to be 50,000 pesos.
conquering state is entirely free to state to what extent he is willing to adopt as his own the
obligations in question. If the conquering state, by proclamation or otherwise, has promised The Code of Civil Procedure of the Philippine Islands (section 285) permits to be introduced,
something that is not consistent with the repudiation of some particular obligations, then good in case of written contracts, 'evidence of the terms of agreement other than the contents of the
faith should prevent repudiation. But silence by the conquering state cannot be accepted as writing,' 'where a mistake or imperfection of the writing, or its failure to express the true intent
confirmation and adoption of all liabilities of the conquered state. and agreement of the parties is put in issue by the pleadings.'
(2) It is true that whatever has received the common consent of civilized nations must have
received the consent of Great Britain, and that to which the latter had assented along with The defense was rested, under appropriate pleadings, on the ground, among others, that the
other nations in general could properly be called international law. As such it will be contracting parties understood that the sugar mills or machinery and the railroad were not to
acknowledged and applied by British courts when legitimate occasion arises for those courts be included as a part of the real estate and that they did not come under any of the terms used
to decide questions to which doctrines of international law are relevant. But any doctrine so in the contract or the deed, and that, for this reason, the instrument did not express the
invoked must be one really accepted as binding between nations, and the international law intention and actual agreement of the parties.
sought to be applied must, like anything else, be proved by satisfactory evidence. The latter
It is well settled that courts of equity will reform a written contract where, owing to mutual
mistake, the language used therein did not fully or accurately express the agreement and
intention of the parties. The fact that interpretation or construction of a contract presents a
question of law and that, therefore, the mistake was one of law is not a bar to granting relief.

The following, among other facts, were established by uncontradicted evidence: Prior to May,
1903, the sugar mills had been in part destroyed by revolutionists, and the mills and machinery
had fallen into disrepair. In that month the company gave orders to remove the machinery and
the rails from the hacienda and store them elsewhere. In October, 1903, the company
contracted to sell all the machinery and rails to one Rueda. They were not included in the
detailed appraisal of the property which the government caused to be made. Before the
contract with the government was executed all the rails and a part of the machinery had been
removed from the hacienda. In the typewritten draft of this contract with the government
which its counsel prepared and which was submitted by Governor Taft to the company's
representative for consideration, it was expressly stated that 'sugar and rice mills and
machinery' together with 'irrigation work, dams, tunnels, ditches, and all other improvements
thereon' should be included in the 'sale and conveyance.' The company's representative
corrected the draft of agreement by striking out with a pen the words 'sugar and rice mills and
machinery.' This correction was acquiesced in by the government's representatives; and in the
final draft of the contract which was executed December 22, 1903, there was no reference to
sugar mills, machinery, or tramway, although the paragraph, as modified, contained the
following explicit and detailed provision:
'This sale and conveyance shall include all the dwelling houses, farm houses, warehouses,
camarines and other buildings, irrigation works, dams, tunnels, ditches, and all other
improvements, together with all water and other rights and all hereditaments belonging to the
company on every part of the estates hereby agreed to be conveyed.'

The words 'sugar mills' were also included in the draft of the final deed of conveyance, but
they were stricken out after a conference between the company's representative and the Civil
Governor, so that the words do not appear in the final deed of conveyance.

This clear and uncontradicted testimony as to the agreement actually made is supported by the
production of the original draft of the agreement in which the words [247 U.S. 385, 393]
'sugar and rice mills and machinery' were stricken out n ink, and also by production from the
files of the Executive Bureau of the stenographic report of the interview with Governor
Wright, above referred to. As against this strong evidence the government can point only to
the fact that in the deed, the hacienda is first described as 'the description, area and boundaries'
thereof 'appear in the title deeds,' then as it appears from the recent government surveys, and
that in the description according to the title deeds, the several sugar mills are named, and
following them is the clause, 'though it is believed that these mills were destroyed in part at
least, by the revolutionists.' This recital, itself of ambiguous import, is of no significance. This
description was in no way relied upon by the Supreme Court of the Philippine Islands. Their
decision was based entirely upon the alleged inclusion of sugar mills and machinery in the
phrase, 'improvements and accessories.' As found by the trial judge, the evidence 'shows,
without the slightest doubt, that the parties, on striking out said words [the sugar mills] from
the document, agreed not to include them in the sale, as demanded by the representative of the
vendor, because they were not legally part of the hacienda, for the reason that they had already
been sold to Enrique Rueda prior to the preliminary agreement.'

The judgment entered in the Supreme Court of the Philippine Islands is reversed and that
entered by the Court of First Instance of Manila is affirmed.
Reversed.