1993

HC

Somalia (A Republic) v Woodhouse Drake & Carey (Suisse) SA [1993] 1 All ER 371

In January 1991 Somalia bought a cargo of Rice for delivery in its capital. By the time the ship arrived in Somalia, there was a civil war and no faction was in effective control of the State. The captain decided that it was too dangerous to deliver the rice and returned. By judicial order the rice was sold and proceeds paid into court. The plaintiffs claimed to be the government of Somalia and sought control over the funds 2 Million Pounds belonging to the Republic of Somalia. The issue was whether the plaintiffs were the government and were entitled to the funds. Following the UK practice, there was no Foreign Office certificate concerning the status of the plaintiffs Resolution The policy of the UK is now not to confer recognition. If recognition is no longer the criterion of locus standi of a foreign government in English Courts and the possession of legal persona in English Law. The applicable criterion is to confirm whether the relevant regime is able to exercise effective control of the territory of the state concerned and it is likely to continue to do so, as well as the evidence of the attitude of Her Majesty to be ‘inferred’ from the nature of the dealings

Lord Atkin: Effective control I understand exercising all the functions of a sovereign government in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government (The Arantzazu Mendi 1939) Lost of control by constitutional government may not immediately deprive its status, whereas an insurgent movement will require to establish control before it can exist as a government Membership to IO does not amount to recognition. It is clear from the letter that her Majesty does not consider that there is at present any effective government in Somalia. If the question is to be decided according to the attitude adopted by her Majesty, an order cannot be made in favour of the plaintiffs. The basis for its attitude is clearly not any disapproval of an established regime, but rather that there is no regime. A classical definition of a State is that contained in Montevideo convention. Whilst illustrating that it is difficult to separate the recognition of a state from recognition of a government of that state, this definition also shows that part of the function of a government is to have relations with other states. Factors to be taking into account in deciding whether a government exists as a government of a state: a) whether it is a constitutional government b) degree, nature and stability of administrative control over the territory c) whether her Majesty has any dealings and nature of such dealings d) in marginal cases, extent of international recognition. The plaintiffs do not qualify to any factor.