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in fact withdrawn.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government has been superseded by another.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
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