Report No. 69

Chapter 22

Certificate of the Government as to Certain Matters Concerning International Relations

Section 57A (New)

I. Introductory/

22.1. Introductory.-

There are many judicial proceedings in which the result often depends upon the proof of an "International fact"1. When the need arises to prove such facts, a certificate of the Government can be obtained by the court on these matters which involve international relations. The statements made in such certificates are usually treated as conclusive. Such certificate is known, in England, as the "Foreign Office Certificate" or "Executive Certificate". In recent times, information is sought from the Commonwealth Relations office also2 in England. In India also, such a certificate can be obtained in appropriate cases3. In view of the importance of the subject in modern times, is appears to be desirable to consider the matter at some length. We shall deal with four aspects of the subject4-

(a) The nature of international facts.

(b) Provisions in Indian Statute law on the subject.

(c) Effect of the Foreign Office Certificate.

(d) Form of the Certificate.

After discussing, these aspects, we shall make our recommendation as to the amendment to be made in the act.

1. For the expression "international fact", see 0' Concell International Law, (1970), Vol. 1, p. 113.

2. Sayece v. Ameer Ruler etc., (1952) 2 QB 390.

3. See section 6, Foreign Jurisdiction Act, infra.

4. 0' Connell International Law, (1970), Vol. 1, p. 113.

II. Nature of International Facts

22.2. International facts.-

International fact.- i.e. facts involving international relations or possessing an international aspect-are of various kinds. For example, it may be necessary to prove that a foreign government is recognised by the government of the forum or that a state of war exists between the countries concerned, or that a foreign country is independent, or under suzerainty or subject to protection, or that movable and immovable property is owned by, or in the possession of, a foreign government, or that a named defendant is a diplomat1.

1. for The expression " International fact:, see O' concell International Law, (1970), Vol. 1, p. 13.

22.3. Diplomatic privilege.-

The question of obtaining a foreign office certificate could arise on most of these facts, but it has frequently arisen in connection with diplomatic privilege. There are, at present, statutory provisions on the subject, but, for a long time, the matter was governed by judicial practice. There is early English authority for the view that it was for the defendant himself to establish, by evidence, his right to diplomatic privilege. But, with the beginning of the nineteenth century, the procedure became established that the court should apply to the Crown for a statement concerning the defendant's status, where diplomatic privilege was in issue.

22.4. Status of Foreign Governments.-

Similarly, after some hesitancy in other cases, the same principle was applied in relation to the status of foreign states. In the words of Shadwell, V.C.1

"I have had communication with the Foreign office and I am authorised to state that the Federal Republic of Central America has not been recognized as an independent government by this country I conceive it is the duty of the judge in every court to take notice of public matters which affect the government of the country."

The House of Lords finally established in Duff Development Co. Ltd., Kelanton2 that it was "the settled practice of the court to take judicial notice of the status of any foreign government, and for that purpose, in any case of uncertainty, to seek information from a Secretary of State, and the information so received is conclusive".

1. Taylor v. Taylor, (1828) 2 Sim 213 (220).

2. Duff Development Company Ltd. v. Kelantan Government, 1924 AC 797 (Headnote).

22.4A. Consultation with the executive-Rationale of.-

The rationale of consultation with the executive in such matters is manifold. First, though the existence of a new state or a new Government is a question of fact, it is one involving important political considerations, and is, therefore, primarily to be determined by the political, and not by the judicial, organs of the State. Secondly, if is often stated that the courts must act in unison with the "will of the national sovereignty", which is expressed in external affairs through the Executive alone. Thirdly, there is the question of avoiding conflict in the national interest. For example, if a Government is recognised only by the courts of a particular state, and not by its Executive, it could thereby recover in that State property which it was contrary to national policy to hand over. This would be anomalous. As lord Atkin observed1-

"Our State cannot speak with two voices .the judiciary saying one thing, the executive another."

Fourthly, considerations of evidentiary convenience are also relevant to the principle of consultation of the Executive.2 According to Lord Sumer, British courts act on the best evidence available, and the best evidence, in this regard, is a statement by the 3 appropriate Secretary of State on behalf of the Crown.

1. The Arantzaza Mrndi, (1939) AC 256 (264) (Lord Atkin).

2. Duff Development Co. v. Kelantan Government, 1924 AC 797 (823).

3. See Nehelt v. Sultan of Honore, (1894) 1 AB 149.

22.5. Criticism.-

This is not to imply that this position has been accepted on all hands without comment. The deference of British and American Courts1 to the attitude of the Executive in connection with sovereign immunity has not escaped criticism. The American Department of State "Suggestion" (or Certificate) can go so far as to "suggest" immunity from jurisdiction in the case of a foreign State or Government, and this may be binding on an American Court. This position has sometimes been regarded as unsatisfactory. However, it appears that some kind of consultation with the executive in these matters is almost unavoidable, and there does not appear to be any other more practicable alternative.

1. See Rich v. Naviera Vacuba, S.A. and Republic of Cuba, (1961) as commented upon in (1962 56 American Journal International Law 550, 552.

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