International law, Sixth edition
Part of the answer as to why a differ-
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International Law MALCOLM N. SHAW
Part of the answer as to why a differ- ent emphasis is evident is no doubt due to the fact that in the latter case, there were competing bodies claiming to be the government of Somalia and the situation on the ground as a matter of fact was deeply confused. It should also be noted that in the Republic of Somalia case, the court took the view that Foreign Office statements were no more than part of the evidence in the case, although likely to be the best evidence as to whether the government had dealings with the entity in question. 150 145 [1966] 1 Ch. 596; 43 ILR, p. 25. 146 See e.g. the Arantzazu Mendi [1939] AC 256, 264; 9 AD, p. 60, and Gur Corporation v. Trust Bank of Africa [1987] 1 QB 599, 625; 75 ILR, p. 675. See also Republic of Somalia v. Woodhouse Drake and Carey (Suisse) SA [1993] QB 54, 65–6; 94 ILR, p. 620. 147 See e.g. F. A. Mann, ‘The Judicial Recognition of an Unrecognised State’, 36 ICLQ, 1987, p. 349, and Beck, ‘A South African Homeland Appears in the English Court: Legitimation of the Illegitimate?’, 36 ICLQ, 1987, p. 350. 148 [1993] QB 54; 94 ILR, p. 608. 149 [1993] QB 54, 68; 94 ILR, p. 622. 150 [1993] QB 54, 65; 94 ILR, p. 619. This was reaffirmed in Sierra Leone Telecommunications Co. Ltd v. Barclays Bank [1998] 2 All ER 821; 114 ILR, p. 466. See also K. Reece Thomas, 482 i n t e r nat i o na l l aw The USA The situation in the United States with regard to the recognition or non- recognition of foreign entities is similar to that pertaining in the UK, with some important differences. Only a recognised state or government can in principle sue in the US courts. 151 This applies irrespective of the state of diplomatic relations, providing there is no war between the two. 152 How- ever, an unrecognised state or government may in certain circumstances be permitted access before the American courts. This would appear to depend on the facts of each case and a practical appreciation of the entity in question. 153 For example, in Transportes Aeros de Angola v. Ronair, 154 it was held that in the particular circumstances where the US State Depart- ment had clearly stated that allowing the plaintiff (a corporation owned by the unrecognised government of Angola) access to the Court would be consistent with the foreign policy interests of the United States, the jurisdictional bar placed upon the Court would be deemed to have been lifted. As in the UK, a declaration by the executive will be treated as binding the courts, but in the USA the courts appear to have a greater latitude. In the absence of the ‘suggestion’ clarifying how far the process of non- recognition is to be applied, the courts are more willing than their UK counterparts to give effect to particular acts of an unrecognised body. Indeed, in the Carl Zeiss case Lords Reid and Wilberforce referred in approving terms to the trend evident in decisions of US courts to give recognition to the ‘actual facts or realities found to exist in the territory in question’, in the interests of justice and common sense. Such recognition did not apply to every act, but in Lord Wilberforce’s words, it did apply to ‘private rights, or acts of everyday occurrence, or perfunctory acts of administration’. 155 How far this extends, however, has never been precisely defined. It was the difficulties engendered by the American Civil War that first stimulated a reappraisal of the ‘no recognition, no existence’ doctrine. It ‘Non-recognition, Personality and Capacity: The Palestine Liberation Organisation and the Palestine Authority in English Law’, 29 Anglo-American Law Review, 2000, p. 228. 151 See e.g. Republic of Vietnam v. Pfizer 556 F.2d 892 (1977); 94 ILR, p. 199. 152 See Banco Nacional de Cuba v. Sabbatino 376 US 398, 412; 35 ILR, p. 2 and National Oil Download 7.77 Mb. Do'stlaringiz bilan baham: |
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