International law, Sixth edition
particular employers to seamen not wanting to work for the communist
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International Law MALCOLM N. SHAW
particular employers to seamen not wanting to work for the communist provisional government. In the Boguslawski case the employers refused to pay the compensation to seamen requesting it, and argued that the UK recognition de jure of the provisional government was retroactive to 28 June, this being the date that the government effectively took control of the country. If this was the case, then acts of the government-in-exile after 28 June ceased to be of effect and thus the offers of compensation could not be enforced in the English courts. The House of Lords emphasised the general proposition that recog- nition operates retroactively. However, they modified the statement by 122 See e.g. Lord Atkin, [1939] AC 256, 264–5. 123 See e.g. Lauterpacht, Recognition, pp. 288–94. 124 [1953] AC 11; 19 ILR, p. 72. 476 i n t e r nat i o na l l aw declaring that the courts had to give effect not only to acts done by the new government after recognition, but also to acts done before the recognition ‘in so far as those acts related to matters under its control at the time when the acts were done’. 125 It was stated that while the recogni- tion of the new government had certain retroactive effects, the recognition of the old government remained effective down to the date when it was in fact withdrawn. Problems might have arisen had the old government, before withdrawal of recognition, attempted to take action with respect to issues under the control of the new government. However, that was not involved in this case. In other words, and in the circumstances of the case, the principle of retroactivity of recognition was regarded as restricted to matters within the effective control of the new government. Where something outside the effective control of the new government is involved, it would appear that the recognition does not operate retroactively and that prior to the actual date of recognition one would have to accept and put into effect the acts of the previous de jure government. This could lead to many complicated situations, especially where a court is faced with conflicting courses of action, something which is not hard to envisage when one de jure government has been superseded by another. It could permit abuses of government such as where a government, knowing itself to be about to lose recognition, awards its supporters financial or other awards in decrees that may be enforced in English courts. What would happen if the new government issued contrary orders in an attempt to nullify the effect of the old government’s decrees is something that was not examined in the Boguslawski case. Another case which came before the courts in the same year was Civil Air Transport Inc. v. Central Air Transport Corporation, 126 and it similarly failed to answer the question mentioned above. It involved the sale of aircraft belonging to the nationalist government of China, which had been flown to the British Crown Colony of Hong Kong. Such aircraft were sold to an American company after the communist government established effective control over the country but before it had been recognised by the UK. The Court accepted that the nationalist government had been entitled to the aircraft and pointed out that: 125 Lord Reid, [1953] AC 11, 44–5; 19 ILR, pp. 81, 83. 126 [1953] AC 70; 19 ILR, pp. 85, 93, 110. See also F. A. Mann, ‘Recognition of Sovereignty’, 16 MLR, 1953, p. 226. r e c o g n i t i o n 477 retroactivity of recognition operates to validate acts of a de facto Govern- ment which has subsequently become the new de jure Government, and not to invalidate acts of the previous de jure Government. 127 It is to be noted that the communist government did not attempt to nullify the sale to the American company. Had it done so, a new situation would have been created, but it is as yet uncertain whether that would have materially altered the legal result. The general doctrine adhered to by the UK with regard to recognition (and now diplomatic dealings) is that it will be accorded upon the evidence of effective control. It is used to acknowledge factual situations and not as a method of exhibiting approval or otherwise. However, this is not so in all cases and there are a number of governments in effective control of their countries and unrecognised by the UK. One major example was the former German Democratic Republic. Since the prime consequence of non-recognition is that the English courts will not give effect to any laws of an unrecognised entity, problems are thus likely to arise in ordinary international political and commercial life. The issue came before the courts in the Carl Zeiss Stiftung v. Rayner and Download 7.77 Mb. Do'stlaringiz bilan baham: |
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