Term 2 Lecture Notes

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University of Toronto Mississauga
Political Science
Aurel Braun

November 26, 2012 • Two fundamental forms of recognition o Constitutive  Because it is bestowed on the recipient, it is considered by nature that it is in agreement  Fails to be congruent with the principles of IL o Declaratory  Self declaration doesn’t necessarily mean you’re recognized • To get recognition, ultimately, go to the security council • Cases of IL in relation to recognition o Sapphire Case  Shows sovereignty is continuous  US Supreme Court  Starts with collision of Sapphire (US) and French naval transport vessel (Euryale) in San Francisco harbour in 1867  French ship suffered heavy damage so they sued  French win the first level  At the time, France lost the Franco Prussian war • Napoleon also gets captured by the Prussians • Emperor is overthrown and new gov’t takes over in France, which is volatile  Issues • Were the lower courts correct in accepting the lawsuit?  Concept of jurisdiction • If you conclude that the gov’t could sue, the gov’t had been overthrown  so even if they were right, it shouldn’t apply any longer  Decision • According to the facts, the French ship was also at fault, so the damages should be equally divided  French is gov’t of a friendly state, so a friendly state should be allowed to sue in our courts for damages (only civil, not criminal)  The gov’t represents national sovereignty and national sovereignty is continuous, even if the gov’t changes • Continuing and perpetual sovereignty in a country, which is transferred to the next gov’t, whether we like it or not • The original lawsuit was in the name of the emperor, representing a state  change in representation doesn’t change nat’l sovereignty and its rights  Two kinds of tests • Objective o Looks to answers to specific questions  Does the new gov’t exercise de facto control over its country’s administrative machine?  Is there resistance to the new gov’t’s authority?  Does it appear to have the backing of a substantial part of public opinion in the country? • Subjective o Whether the existing gov’t is willing to discharge existing int’l obligations o Does it have the capacity to do so? o You are going to work as part of the principles of IL  If the party that seeks to dislodge an existing gov’t is successful and it becomes a de facto gov’t, then that gov’t will have its acts recognized from when it’s a de facto gov’t • The previous de jure gov’t’s actions will be recognized as well o Republic of China case  Timing of recognition is crucial  Involves an insurance claim  Gov’t of China at the time (Republic of China) insured the gov’t’s building with anAmerican insurance company “Merchant’s Insurance Company”  There was a fire and the building was damaged; but after the damage occurred, the gov’t was overthrown by what came to be known as the National Gov’t of China  NGC put in a claim and sought payment from the company • Insurance company said we don’t know you, we have insurance with RoC, not with NGC • Company says they won’t pay  NGC sues company in the US  Can a national gov’t that has not been recognized that came to power through violent means sue in the courts of a foreign state?  In this case, the NGC prevails  Court says that they will not rule in favour of a gov’t that came into power through violent means • Has to be some recognition by a political department of the gov’t in the country in which courts are being addressed  There has to be implicit recognition  Court doesn’t just throw out all the rules, but it very finely interprets them o D  Examine how recognition over the US state speaks to recognition of the gov’t being imp o Haiti  Diff b/w de facto and the gov’t o Sultan of Javor  Shows how sovereignty and recog can so easily be abused • Belligerent Communities January 7, 2013 • Luther v Sagor o Involves the new Soviet gov’t o Plaintiff is a company that had been incorporated under previous gov’t (1918)
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