Page 46 - Law of Peace, Volume ,

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Restatement takes the position that there is such a duty from maintaining an action already commenced. 96
and that unwarranted recognition violates the rights of any (2) Although a foreign government not recognized
I state adversely affected thereby, although the recognition by the political arm of the United States may not maintain
is nevertheless effective. 88 suit in American courts, if the foreign government is not
3-13. Recognition and Diplomatic Relations. a. Recog- the suitor its lack ofjuridical status is not determinative of
nition of a government implies a willingness to carry on whether transactions with it or within its territory will be
diplomatic relations with that government. However, denied enforcement. 97 The acts of a de facto government
recognition does not require the initiation or resumption (even though the government is not recognized) may
of diplomatic relations between the government of the affect private rights and obligations arising either as a
recognizing state and the recognized government. 89. result of activity within, or with persons or corporations
Thus, it is possible for a government to be recognized and within, the territory controlled by the de facto govern-
for the establishment of a diplomatic mission to be ment. The private rights and obligations thus arising are
delayed or postponed, or not maintained, for a variety of judicially cognizable, unless to permit suit thereon would
reasons. 90 violate United States law or public policy. 98 Even a
b. Likewise, diplomatic relations can be broken with- creature corporation of the nonrecognized regime could
out effect upon a previous recognition of a state or its perhaps maintain suit in a United States court to enforce
government. 91 The severance of diplomatic relations with such rights and obligations. 99 As stated in a widely-noted
a state recognized by the United States does not deny that New York decision:
state access to courts of the United States under principles There are many things which may occur within the purview of an
of comity which allow sovereign states to sue in those unrecognized government which are not evil and which will be given
customary legal significance in the courts of nations which do not recog-
courts. 92
nize the prevailing de facto government. In a time in which govern-
3-14.The Status of Recognized and Unrecognized ments with established control over territories may be denied recogni-
States and Governments Under Municipal Law. a. tion for many reasons, it does not mean that the denizens of such ter-
General. Legal problems concerning recognition and non- ritories or the corporate creatures of such powers do not have the juridi-
cal capacity to trade, transfer title, or collect the price for the merchan-
recognition frequently have arisen in the domestic courts dise they sell to outsiders, even in the courts of nonrecognizing nations.
of the United States, Great Britain, and other states. .. . 100
Typically, the problem is whether or not a court may treat c. Sovereign Immunity from Suit. Under the doctrine of
a state or regime as having juridical existence in the ab- sovereign immunity, it is the traditional rule that a foreign
sence of recognition of that state or regime by the govern- state may not be sued without its consent in the courts of
ment of the forum state. In other words, does recognition another state. 101 Thus, United States courts may not
or nonrecognition have any effect upon the ability of a bring a foreign sovereign before the U.S. bar, not because
state to maintain suit and to have its acts represented in of comity, but because that state has not submitted itself
the courts of other states? The following is a summary of to U.S. laws. 102 This result depends not upon recognition
selected judicial responses (mainly by United States or nonrecognition by the United States, but upon funda-
courts) to this question and other related ones. mental considerations regarding the nature of
b. Standing to Sue. (1) Generally, friendly foreign sovereignty. 103 Moreover, sovereign immunity is not
states are permitted, as a matter of comity, to bring limited to the foreign state or its government, but may ex-
tend to its property, its agents, and its instrumen-
proceedings in the courts of another state. 93 But access to
talities. 104
domestic courts is usually denied to foreign powers that d. Law-Making Authority of Foreign Governments. (1)
have not been recognized by the forum state. 94 The
The courts of the United States generally will not question
recognition of a state or government before a decision
the validity of acts of another government done within its
denying it access to the courts becomes final gives rise
own territory. 105 This result obtains even though diplo-
retroactively to its capacity to maintain the action. 95 With-
matic relations between the United States and the foreign
drawal of recognition prevents the state or government
96. Gov't of France v. Lobrandtsen-Moller Co., 48 F. Supp. 631
88. Restatement, supra note 2, at 5 99(2). (S.D.N.Y. 1943).
89. Id. at 5 98(1). g7. See Upright v. Mercury Business ~a'chines Co., 13 A.2d 36,
90. See 2 Whiteman, supra note 16, at 29. 213 N.Y.S. 2d 417 (1st Dep't 1961).
91. Id.; Restatement, supra note 2, at 5 98(2). 98. Id.
92. Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12 99. Id.
(1964). 100. Id. at 41, 213 N.Y.S. 2d at 422.
93. The Sapphire, 78 U.S. (11 Wall.) 164 (1871). 101. See ch. 5, irlfra.
94. See Russian Socialist Federated Soviet Republic v. Cibrario, 235 102. See Wulfsohn v. Russian Socialist Federated Soviet Republic,
N.Y. 255, 139 N.E. (1923). See also decisions in other legal systems 234 N.Y. 372, 138 N.E. 24 (1923).
noted in Leech, supra note 28, at 791-92. 103. Id.
95. Republic of China v. Merchants' Fire Assurance Co., 30 F.2d 104. Friedmann, supra note 20, at 642.
278 (9th.Cn. 1929). 105. Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).