Unrecognised States and Domestic Law
| Published date | 01 January 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02561.x |
| Date | 01 January 1987 |
| Author | Colin Warbrick |
NOTES
OF
CASES
UNRECOGNISED STATES
AND
DOMESTIC LAW
IN
Cur
Corporation
v.
Trust
Bank of Africa
Ltd.,I
the Court
of
Appeal had
to
decide as preliminary point in a commercial action
whether the government
of
Ciskei could be a party to a civil action
in England. The plaintiffs had contracted with the government
of
Ciskei to design and construct public buildings in Ciskei. The
defendants held a sum of money as part
of
a guarantee against
remedying any defects in the buildings. Shortly before the expiry
of
the guarantee, a claim was made against the defendants by the
government
of
Ciskei. In these proceedings, the plaintiffs sought a
declaration that no valid claim had been made against the
defendants during the currency
of
the guarantee and they sought
repayment
of
their moneys held by the defendants. The defendants
joined the government as third parties, seeking a similar declaration
and a finding that they were absolved from liability. The government
served a defence and a counterclaim.
Ciskei is one of the tribal Homelands established by South
Africa in parts
of
its territory and recognised by South Africa as
independent states.* The General Assembly has called upon
members
of
the United Nations not to recognise the homelands
and none has done
SO.^
The Foreign Office certificate in
Cur
made it clear that the British government does not recognise Ciskei
as a state, either
de jure
or
de
facfo.
It might have been thought
that the matter
of
whether the government
of
Ciskei could sue or
be sued in the English court could be fairly shortly disposed of, at
least in the absence
of
a reconsideration
of
established a~thority.~
So
it was in the instant decision, where Steyn
J.
held that the
government could not bring or defend an action. This outcome was
disagreeable to all the parties, the government,
of
course, because
of the denial
of
the status that it claimed, the bank because it was
seeking a determination
of
the merits
of
the dispute which might, if
the bank were successful, serve as a defence in any subsequent
action in Ciskei or South Africa, and because it, in common with
the plaintiff and other lending institutions, would find themselves
without a remedy in England in any future dispute between them
I
[1986] 3 W.L.R.
583.
I
am most grateful
to
Christopher Grierson of Durrant Piesse
for obtaining information for me.
Carpenter, “Variation on a Theme-the Independence
of
Ciskei,” 7 S.A.Yb.1.L.
83
G.A.Res. 31/6A; G.A.Res. 36/172, The British government has indicated that
it
does
not recognise Transkei as a state, “United Kingdom Materials on International Law,”
(1978) XLlX B.Yb.1.L. 340, nor regard Bophuthatswana as a state entitled
to
immunity
under Part
I
of the State Immunity Act 1978 (certificate
of
March
4,
1983).
‘
City
of
Berne
v.
Bank
of
England,
9 Ves.Jun. 347,
The Annette and the Dora
(1919)
P. 105. Until 1978, when the doctrine of absolute sovereign immunity was replaced by
the State Immunity Act, the question
of
the capacity of a state
or
government
to
be sued
would invariably arise in the form of its entitlement
to
immunity.
84
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