182 Cabinet Submission by Mr W. M. Hughes, Minister for External Affairs

7 April 1938

DE JURE RECOGNITION BY HIS MAJESTY'S GOVERNMENT IN THE UNITED KINGDOM OF THE INCORPORATION OF AUSTRIA IN THE GERMAN REICH

1. Attached hereto are copies of telegrams Nos. 83 and 84 from the Secretary of State for Dominion Affairs to the Prime Minister, (Annexes A [1] and B [2]), copy of telegram of 31st March to the External Affairs Officer in London, (Annex C [3]), and the latter's reply thereto of the same date, (Annex D [4]).

2. It will be observed that the Note to be handed to the German Government on 2nd April will be considered as the de jure recognition by the United Kingdom of the incorporation of Austria in the German Reich. Two questions arise which concern the Commonwealth Government. In the first place, does such recognition by the United Kingdom bind the Commonwealth Government; secondly, if it does not bind the Commonwealth Government, should independent action in regard to recognition be taken.

3. It will be recollected that in February, 1924, Great Britain recognised Soviet Russia as the de jure ruler of those territories of the Russian Empire which recognised its authority. This step was taken without consulting the Dominions in any way, and was therefore a distinct breach of the established understanding on the conduct of Empire foreign policy. Canada indicated her disapproval of such a course by issuing her own formal recognition some weeks later. The attitude of the Commonwealth Government, as expressed by Mr Bruce [5] in the House of Representatives on 19th August, 1924, was that the British action in recognising Soviet Russia without consultation was a breach of the established practice but that the Commonwealth Government did not consider that Australian interests were affected or that any complications involving Australian interests were likely. He added that the British Government had given assurances that the incident would not be a precedent for the future.

4. It was no doubt attributable to the attitude of the Dominions on this occasion that a different procedure was adopted in the case of the recognition of the Spanish Republican Government in 1931. The procedure followed on this occasion was that a Note was addressed on behalf of His Majesty's Government in the United Kingdom and a separate Note on behalf of each of His Majesty's Governments in Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa and the Irish Free State according recognition to the new Government of Spain. It would appear, therefore, that the view taken by the British Government was that separate action on behalf of each Dominion was necessary in order to bind each Dominion.

5. The general practice as to consultation between the various parts of the British Commonwealth of Nations is for the initiating Government to inform the other Governments of the Commonwealth of the policy it intends to pursue in any matter and to proceed with that policy unless objections are raised. It is always understood, however, even if no objections are raised, that no obligations should be accepted on behalf of any Government without that Government's assent.

6. The position in regard to the de jure recognition of the incorporation of Austria in the German Reich is that the United Kingdom Government has informed the Commonwealth Government of the policy it intends to pursue, but it does not appear, judging from the precedent of the recognition of the Spanish Republican Government in 1931, that the Dominions would be bound by any action in this regard taken by the United Kingdom Government. That is to say, de jute recognition by the United Kingdom Government would bind the United Kingdom alone.

7. The German Consul-General in Sydney [6] informed the Minister for External Affairs on 19th March, that as the Austrian Consulates had ceased to exist after the unification of Austria and Germany, the Consular functions of the former Austrian Consulates had been taken over by German Consulates. Receipt of this communication was acknowledged on 23rd March without comment, but it is arguable that it might be regarded by the German Government as an implied acceptance of the position. On 14th March, the Commonwealth Government was advised of the resignation of the former Austrian Consul in Sydney. [7]

8. It is certain that the absorption of Austria by Germany will, in the absence of recognition of the position by the Commonwealth, lead to certain practical difficulties. For instance, a person applying for naturalisation must fill in a form of application stating his nationality, he must advertise his intention to apply in the newspapers and in so doing must mention his nationality, and he must take an oath of allegiance renouncing his former nationality. The Commonwealth Government must accordingly decide whether an Austrian applying for naturalisation is to be considered as a German or Austrian national. If the Commonwealth does not recognise the absorption of Austria in the German Reich it is logical to assume that Austrians applying for naturalisation must be regarded as Austrian and not German nationals. This would almost inevitably lead to difficulties between the Commonwealth and German Governments. There are also certain obvious difficulties in regard to passports. Austrians arriving in the future in this country will for the most part necessarily travel on German passports in which, presumably they will be described as German nationals. If the incorporation of Austria in Germany is not to be recognised, this statement could not be accepted as an accurate one.

9. The Commonwealth Government has as yet no information about the attitude of the other Dominions towards this question. One of the reasons given by the United Kingdom Government for the presentation of the note on 2nd April, is that it is undesirable to await the result of the plebiscite in view of the conditions in which it is being held, for this might give the impression that the United Kingdom accepted the plebiscite as the free and unconstrained expression of the Austrian people's wish.

It is a matter of opinion, however, whether the action, almost precipitate in its haste, to grant de jure recognition, was appropriate in all the circumstances. Great Britain has not granted recognition either to Japan or Italy over Manchuria and Abyssinia respectively. As in the case of Austria, the loss of independence was the result of the use of force as an instrument of national policy, the deliberate violation of international law, and a disregard for the sanctity of specific treaties. In the case of Abyssinia, Great Britain withdrew her Legation, appointed a Consul-General to act in place of the Minister, and said such act amounted to de facto recognition only. In the case of Austria a precisely similar procedure was followed, but in this instance, it is to be regarded as both 'de facto' and 'de jure' recognition.

It is understood that the United Kingdom Government distinguishes between the cases of Abyssinia and Austria for the following reasons. In the case of Abyssinia, it was essential for political and parliamentary reasons to proceed first to the stage of de facto recognition. It was agreed accordingly that the request for an Exequatur by the Consul-General at Addis Ababa amounted only to de facto recognition and it was arranged with the Italians that they should accept this position. The United Kingdom Government is not of the opinion that similar considerations apply to the present position in Austria. It contends that the absorption of Austria has been carried out in both Austria and Germany by laws which are technically regular, and there is not in existence, as there is in the case of Abyssinia, a former Head of the State who is in a position to dispute the regularity of absorption. There is accordingly in the present case no need for distinguishing between de facto and de jute recognition. Further, it appears that the United Kingdom Government propose in the future to deal with the German Government as the Government which in law exercises sovereignty over Austria.

10. The following courses of action appear to be open to the Commonwealth Government:-

(i) That the Commonwealth Government should take no action at the present time. As yet, it appears that few States have granted recognition to the absorption of Austria into the German Reich. It is, of course, possible, that changed circumstances, such as a general agreement with Germany or practical considerations, may make recognition by the Commonwealth Government desirable at a later date.

The Commonwealth Government did not, however, receive any note from Germany in regard to the absorption of Austria in the Reich, and is not under any obligation voluntarily to accord recognition or to make a unilateral declaration to that effect.

(ii) It may be considered that practical considerations such as those to which allusion has been made in paragraphs 7 and 8 relating to Consulates, naturalisation and passports require that independent action should be taken by the Commonwealth Government.

Such action might assume one of the two forms:

(a) The Commonwealth Government might request that it should be associated with the United Kingdom Government in its Note of 2nd April by means of a supplementary communication presented by the United Kingdom Government on behalf of the Commonwealth Government.

(b) The Commonwealth Government might take the necessary action to inform the German Government, through the British Ambassador in Berlin, that the Commonwealth Government accords de jure recognition to the incorporation of Austria in the German Reich.

If course (b) is approved, it is suggested action might be taken prior to the plebiscite which will be held on 10th April. It might be undesirable to wait for results in view of the conditions in which the plebiscite is being held. To do so might give the impression that the plebiscite was accepted by the Commonwealth of Australia as the free and unconstrained expression of the Austrian people's wishes.

11. It might be added that in view of the deterioration in the military situation of the Spanish Republican Government and the possibility of the complete victory of General Franco [8] in the near future, the matter of the recognition of a new Government in Spain will shortly concern the Commonwealth Government. It seems accordingly to be desirable that general consideration should be given to this question.

W. M. HUGHES

[The following annotation was made in Lyons's handwriting:

'Approved. De jure recognition after [sic] plebiscite on the 10th J. A. Lyons 8.4.38'. This decision is also recorded in Cabinet Minutes (PM&C: A2694, 8 April 1938, unnumbered minute).]

1 Document 168.

2 Not printed.

3 Document 173.

4 Document 174.

5 S. M. Bruce, Prime Minister.

6 Dr R. Asmis.

7 T. J. Parker.

8 Head of State and Generalissimo of National Armies, Spain.

[AA : A981, GERMANY 43, ii]