72 A.D.2d 439, *; 424 N.Y.S.2d 535, **;
1980 N.Y. App. Div. LEXIS 9699, ***
Liang Ren-Guey, Respondent-Appellant, v. Lake Placid 1980 Olympic
Games, Inc. Appellant-Respondent
[NO NUMBER IN ORIGINAL]
Supreme Court of New York, Appellate Division, Third Department
72 A.D.2d 439; 424 N.Y.S.2d 535; 1980 N.Y. App. Div. LEXIS 9699
February 11, 1980
PRIOR HISTORY: [***1]
Cross appeals from an order of the Supreme Court at Special Term
(Norman L. Harvey, J.), entered February ll, 1980 in Essex County, which
granted, in part, plaintiff's motion for a preliminary injunction to the extent
that defendant was enjoined from preventing plaintiff from participating in the
1980 Lake Placid Winter Olympic Games with the same privileges as are extended
to all athletes from all nations, and directed that the national flag to be
borne by or on behalf of plaintiff shall be the official flag of the Republic
of China, that if the occasion should arise, plaintiff shall be entitled to
have the official national anthem of the Republic of China played, that
plaintiff shall be permitted to wear the uniform or distinctive clothing
similar to or the same as that worn by prior participants from the Republic of
China and that plaintiff have residential privileges in the Olympic Village at
Lake Placid. Liang Ren-Guey v Lake Placid 1980 Olympic Games, 72 AD2d .
DISPOSITION: Motion of the United States Attorney General granted,
without costs.
Order reversed, on the law, without costs, motion denied and complaint dismissed.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff athlete and defendant corporation filed
cross-appeals from an order of the Supreme Court at Special Term (New York),
which granted in part, the athlete's motion for a preliminary injunction to the
extent that the corporation was enjoined from preventing plaintiff from
participating in the Olympic Games with the same privileges as were extended to
all athletes from all nations.
OVERVIEW: The corporation was a not-for-profit corporation established
under New York law to comply with the requirement of the Olympic Charter that
the National Olympic Committee (NOC) of the host country establish an
appropriate entity to serve as a surrogate of the International Olympic
Committee (IOC) to operate the games. The athlete was selected by the Taiwanese
NOC to participate in the Olympic Games, and he sought a permanent injunction
staying the games unless the corporation allowed him to use the flag, emblem,
name, and anthem of the Republic of China. In reversing the trial court's
order, the court held that the President had the sole power to recognize
foreign governments, and recognition of a foreign government was a political
question that a court could not entertain. By a resolution, the IOC gave only
conditional recognition to Taiwan and expressly rejected Taiwan's traditional
anthem and flag. Since the Department of State, acting on the President's
behalf, elected to defer to the IOC in matters concerning national
representation at the Olympics, the issue was a political question, and beyond
the powers of the court to review.
OUTCOME: The court reversed the trial court's judgment and dismissed
the complaint.
CORE TERMS: flag, games, anthem, emblem, athlete, political question,
sovereignty, diplomatic recognition, permanent injunction, executive board,
charter, not-for-profit, notification, surrogate, withdrawn, elected, staying,
compete, defer
LexisNexis(R) Headnotes Hide
Headnotes
Civil Procedure > Justiciability > Political Questions
Constitutional Law > The Presidency
Constitutional Law > The Judiciary > Case or Controversy >
Political Questions
HN1 The President has the sole power to recognize foreign governments.
Whether a foreign government should be recognized is a political question that
neither the United States Supreme Court nor any other American court may
review. More Like This Headnote |
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HEADNOTES:
Courts -- Political Questions Doctrine
In an [***2] action by a
Taiwanese athlete selected to participate in the 1980 Lake Placid Winter
Olympic Games for a permanent injunction staying the Games unless defendant, a
not-for-profit corporation established to operate the Games, allowed plaintiff
to use the flag, emblem, name and anthem of the Republic of China, the
complaint is dismissed; the International Olympic Committee (IOC), after
receiving notification that the United States had withdrawn diplomatic
recognition of Taiwan, had adopted a resolution allowing the National Olympic
Committee (NOC) of the People's Republic of China to use the nation's official
flag, anthem and emblem, while changing the name of the Taiwanese NOC and
requiring submission of alternatives for the flag, anthem and emblem to be used
by the Taiwanese at the Games, and since the Department of State, acting on
behalf of the President, who has the sole power to recognize foreign
governments, elected to defer to the IOC in matters concerning national
representation at the Olympics, the issue is a political question and is,
therefore, beyond the powers of a court to review.
COUNSEL: William Kissel (Rogers & Wells [William S. Greenwalt of
counsel]), for appellant-respondent.
[***3]
Tenzer, Greenblatt, Fallon & Kaplan (Bernard H. Goldstein of
counsel), for respondent-appellant.
George H. Lowe, United States Attorney (Mark C. Rutzick of counsel),
for the Attorney General of the United States.
JUDGES: Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Casey, JJ.,
concur.
OPINIONBY: PER CURIAM
OPINION: [*440] OPINION OF THE COURT
[**536] The International Olympic Committee (IOC)
governs the Olympic Games and owns the rights to them. The Olympic Charter
provides that every person or organization that participates in the games shall
accept the supreme authority of the IOC. The charter gives the IOC complete
control over the development and conduct of the games and makes the IOC the
final authority on all questions concerning the games. The various National
Olympic Committees (NOC) are the IOC representatives in their respective countries.
The NOC from a given country is not free to define itself. The charter provides
that the name of an NOC must reflect the territorial extent and tradition of
its country subject to IOC approval. Competing athletes, such as plaintiff,
must be affiliated with the NOC of their nation.
The problem of having two Chinas [***4]
competing in the Olympics has confronted the IOC since 1960, when the
IOC required athletes from the Republic of China (Taiwan) to compete under the
name "Formosa". * At an IOC session in April of 1979, the IOC
resolved to allow both Chinas to compete in the 1980 games. However, the
resolution left to the executive board of the IOC determinations regarding
names, flags, anthems and constitutions. After receiving notification that the
United States had withdrawn diplomatic recognition of Taiwan, the executive
board, at a meeting held October 23 to 25, 1979, adopted a resolution [**537]
allowing the NOC from the People's Republic of China to use the nation's
official flag, anthem and emblem, while changing the name of the Taiwanese NOC
and requiring submission of alternatives for the flag, anthem and emblem to be
used by the Taiwanese at the games.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
* The Taiwanese did so under protest. In 1976, the Taiwanese were not
permitted to use their official name, flag and anthem at the Montreal Summer
Olympics.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***5]
[*441] The defendant is a not-for-profit corporation
established under New York law to comply with the requirement of the Olympic
Charter that the NOC of the host country establish an appropriate entity to
serve as a surrogate of the IOC to operate the games. Plaintiff is an athlete
selected by the Taiwanese NOC to participate in the winter Olympic Games at
Lake Placid. In this action he seeks a permanent injunction staying the games
unless defendant allows plaintiff to use the flag, emblem, name and anthem of
the Republic of China.
Initially, we grant the motion of the United States Attorney General to
file a statement of interest of the United States with respect to this matter
(US Code, tit 28, § 517).
Both the plaintiff and Special Term focus on the narrow issue of
plaintiff's rights as an individual. In our view, however, the issue is much
broader since plaintiff seeks not only to express his own individual political
beliefs, but also to carry a flag and wear an emblem symbolic of the country
which he represents as a participant in the games.
HN1The President has the sole power to recognize foreign governments (
United States v Pink, 315 U.S. 203, 223; United States [***6]
v Belmont, 301 U.S. 324, 330). Whether a foreign government should be
recognized is a political question that neither the United States Supreme Court
nor any other American court may review ( Oetjen v Central Leather Co., 246
U.S. 297, 302, 304; National Union Fire Ins. Co. v Republic of China, 254 F2d
177, 186, cert den 358 U.S. 823).
The flag is the emblem of national sovereignty ( Halter v Nebraska, 205
U.S. 34; see, also, Convention on the High Seas of April 29, 1958, 2 UST 2312,
art 5; 52 Amer J of Int L 842, 843), and since it is inextricably intertwined
with the national identity, use of a flag, in an event such as the Olympic
Games, creates an issue of sovereign representation. In effect, plaintiff asks
this court to compel the defendant, as surrogate of the IOC, to recognize a
symbol of national sovereignty. However, by its resolution, the IOC gave only
conditional recognition to Taiwan and expressly rejected Taiwan's traditional
anthem and flag. Since the Department of State, acting on behalf of the
President, has elected to defer to the IOC in matters concerning national
representation at the Olympics, the issue involved in this appeal is a
political question, [***7] bound up as it is with difficult questions of
foreign policy, and is, therefore, beyond the powers of this court to review.
[*442] The motion of the United States Attorney
General should be granted, without costs.
The order should be reversed, on the law, without costs, the motion
should be denied and the complaint dismissed.
Motion of the United States Attorney General granted, without costs.
Order reversed, on the law, without costs, motion denied and complaint dismissed.