International law, Sixth edition
particular country or as between two foreign states, and whether or not
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International Law MALCOLM N. SHAW
particular country or as between two foreign states, and whether or not a particular person is entitled to diplomatic status. This means that in such matters of state the courts will consult the government and regard the executive certificate (or Foreign Office certificate as it is sometimes called), which is issued following the request, as conclusive, irrespective of any relevant rules of international law. 352 This was firmly acknowledged in Duff Development Co. Ltd v. Kelantan, 353 which concerned the status of the state of Kelantan in the Malay Peninsula and whether it was able to claim immunity in the English courts. The government declared that it was regarded as an independent state and the House of Lords noted that ‘where such a statement is forthcoming, no other evidence is admissible or needed’, and that: it was not the business of the Court to inquire whether the Colonial Office rightly concluded that the Sultan [of Kelantan] was entitled to be recognised as a sovereign by international law. 354 This basic position was reaffirmed in R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Trawnik, 355 in which it was held that certificates under section 40(3) of the Crown Proceedings Act 1947 and section 21 of the State Immunity Act 1978 were reviewable in the courts only if they constituted a nullity in that they were not genuine certificates or if, on their face, they had been issued outside the scope of the relevant statutory power. The contents of such certificates were conclusive of the matters contained therein and, in so far as they related to recognition of foreign states, were matters within the realm of the royal prerogative and not subject to judicial review. Problems have arisen in the context of the decision of the UK an- nounced in 1980 not to accord recognition to governments, but rather to treat the question of an unconstitutional change of regimes as one 352 See e.g. Oppenheim’s International Law, pp. 1046 ff. 353 [1924] AC 797; 2 AD, p. 124. See also The Fagernes [1927] P. 311; 3 AD, p. 126 and Post Office v. Estuary Radio Ltd [1968] 2 QB 740; 43 ILR, p. 114. But cf. Hesperides Hotels v. Aegean Turkish Holidays [1978] 1 All ER 277; 73 ILR p. 9. 354 Note that under s. 7, Diplomatic Privileges Act 1964 and s. 21, State Immunity Act 1978, such certificates are ‘conclusive evidence’ as to issues of diplomatic and state immunity. See also s. 8, International Organisations Act 1968, and see further below, chapter 13. 355 The Times, 18 April 1985, p. 4. See also C. Warbrick, ‘Executive Certificates in Foreign Affairs: Prospects for Review and Control’, 35 ICLQ, 1986, p. 138, and E. Wilmshurst, ‘Executive Certificates in Foreign Affairs: The United Kingdom’, 35 ICLQ, 1986, p. 157. 194 i n t e r nat i o na l l aw relating to diplomatic relations. 356 In Republic of Somalia v. Woodhouse Drake and Carey (Suisse) SA, 357 the court was faced with a confused situa- tion concerning whether the interim government of Somalia was actually in effective control and the extent to which other factions controlled dif- ferent areas of the country. The court noted that in reaching its decision as to whether the interim government was or was not the valid successor to the former legitimate government in the light of the degree of actual control exercised over the country, letters from the Foreign and Com- monwealth Office became part of the evidence in the case. In so far as the three letters concerned statements as to what was happening in the country, ‘such letters may not be the best evidence’, but in so far as they dealt with the question as to whether and to what extent the UK govern- ment had dealings with the foreign government, such letters ‘will almost certainly be the best and only conclusive evidence of that fact’. 358 The United States State Department similarly offers ‘suggestions’ on such matters, although they tend to be more extensive than their British counterparts, and include comments upon the issues and occasionally the views of the executive. 359 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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