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).]