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What right have I, as the King's Judge, to interfere upon the subject of a contract with a country which he does not recognize?

Lord Eldon's words, written in 1823, have been echoed more than once by American judges, who have been as troubled as Eldon by problems complicated by diplomatic nonrecognition. Twentieth-century wars and revolutions have required American courts to decide whether unrecognized governments, entities created by them, their representatives, or their assignees could sue in domestic courts, often on matters of private right. Frequently, too, the courts have been perplexed by the effect of nonrecognition on the application of foreign laws and decrees.

Uncertain of the consequences that should flow from nonrecognition, the courts have often responded as Eldon did; alarmed by the suggestion that their "recognition" of a government might conflict with executive nonrecognition, they have frequently endeavor-d to treat unrecognized governments as nonexistent. In addition, the courts have often emulated Lord Eldon, in their own fashion, by hastily deferring 'to supposedly overriding considerations of foreign policy as expressed, at times, by the State Department. Only rarely have they evaluated .in a sophisticated manner the basis in policy and precedent for taking judicial cognizance, in any context, of an unrecognized government.

As long as trade and other contacts with unrecognized countries are not prohibited, these questions of doctrine and judicial technique will be presented to the courts. They have most recently been raised and provocatively discussed by the Appellate Division of the Supreme Court of New York in Upright v. Mercury Business Machs. Co. To some extent Upright is a welcome departure from past decisions; in other respects it bears an unfortunate resemblance to them. This article will discuss Upright and some of its implications and contradictions, with the hope of contributing to a clarification of some of the problems that nonrecognition has persistently created for American courts and will consider a method that the courts may use in meeting those problems.


Courts | International Law | Law


This article originally appeared in 62 Colum. L. Rev. 275 (1962). Reprinted by permission.