1 This is sometimes called ‘foreign act of State’ to distinguish it from a British act of state.
2 The phrase ‘act of State’ was used in a different sense, akin to immunity ratione materiae, in Attorney General of Israel v Eichmann (1962) 36 ILR 5 at 308–9: ‘[t]he theory of “Act of State” means that the act performed by a person as an organ of the State—whether he was Head of the State or a responsible official acting on the Government’s order—must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty.’
3 Luther v Sagor [1921] 3 KB 532.
4 One of the criticisms levelled at Professor Brownlie’s treatment of State immunity in his Draft Resolution presented to the Institut de Droit International was that he sought to extend this procedural plea to all matters concerning a foreign State, in particular to include its prescriptive jurisdiction as a legislator.
5 Varges, ‘Defining a Sovereign for Immunity Purposes: Proposals to Amend the ILA Draft Convention’ (1985) 26 Harv Intl LJ 103 at 115. Exceptionally SIA, s 14(2) and the ILA Draft Montreal Convention permit private entities acting in the exercise of sovereign authority to claim immunity, and these provisions have been criticized on this account. Kuwait Airways Corpn v Iraqi Airways Co (No 2), 3 July 1992, Evans J; [1995] 1 Lloyd’s Rep 25, CA; [1995] 3 All ER 694, HL; C Czarnikow Ltd v Centrala Handlu Zagranicznego ‘Rolimpex’ [1978] 2 All ER 1043, 64 ILR 195 demonstrates that such a rule certainly complicates the law of State immunity.
6 Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening), Judgment, ICJ Reports 2012 (hereafter Jurisdictional Immunities), para 108. See the Index for references to this case throughout this book.
7 Jurisdictional Immunities, para 93. The ICJ applied the law of State immunity as it stood in 2004 (the time of the Italian proceedings) not as it stood in 1943–45 (the time of the German acts that were the subject of the proceedings in Italy).
8 See Chs 15 and 20 as to loss of a direct remedy by means of national court proceedings by the ICJ’s declaration of the procedural nature of a plea of State immunity.
9 Jurisdictional Immunities, para 93.
10 As to the position in English law, see Dicey, Conflict of Laws (16th edn, 2012), para 5-021.
11 C Czarnikow Ltd v Centrala Handlu Zagranicznego ‘Rolimpex’ [1979] AC 351.
12 USSR v ICC Handel Maatschappi 10 September 1981, 19 March 1987, Netherlands Ct of Appeal, 87 ILR 103. See the litigation in NOGA v State of Russia, discussed in Ch 17.
13 Article 24 and UNCSI’s provisions on enforcement of judgments are set out in Chs 16 and 17.
14 168 US 250 at 252 (1897).
15 Oetgen v Central Leather Co 246 US 297 (1918); Ricaud v American Metal Co 246 US 304 (1918). See generally Born, International Civil Litigation in United States Courts (5th edn, 2011), Ch 9 (Act of State and the Foreign Sovereign Compulsion), 797 et seq; Koh, ‘International Business Transactions in US Courts’ R de C 261v (1996-V), 9–24; Koh ‘Is International Law Really State Law?’ (1998) 111 Harv L Rev 1824.
16 376 US 398 (1964), 35 ILR 1.
17 376 US 398 (1964), 35 ILR 1, para 428.
18 Baker v Carr 369 US 186 (1962).
19 Discussed below under the definition of an act of State.
20 Cited in Bernstein v NV Nederlandichre-Amerkaanische Stoomvaart Maatschappij 210 F 2d 375 (2d Cir 1954), 20 ILR 24. A majority of the Supreme Court justices, despite Justice Rehnquist’s support, refused to accept the Bernstein exception, First National City Bank v Banco Nacional de Cuba US 750 (1072).
21 22 USC, s 2170(e)(2). Cf the exception to State immunity for takings in violation of international law in the FSIA, s 1605(a)(3). In Ch 8 US law.
22 Kalamazoo Spice Extraction Co v Provisional Military Government of Socialist Ethiopia 729 F 2d 422 (6th Cir 1984). Born and Rutledge, International Civil Litigation in United States Courts (5th edn, 2011) (hereafter Born), 848 compares it to the House of Lords’ decision in KAC v IAC (Nos 4 and 5) [2003] 2 AC 883, 124 ILR 677 refusing recognition of Resolution 369 of the Revolutionary Command Council of Iraq transferring title of captured Kuwaiti aircraft to IAC as in violation of ‘clearly established rules of international law’.
23 Born, 684.
24 WS Kirkpatrick & Co v Environmental Tectonics, 493 US 400 at 405 (1990).
25 Sarei v Rio Tinto plc (7 August 2006), 487 F 3d 1193; 456 F 3d 1069 (9th Cir Cal, 2006).
26 Braka v Bancomer 762 F 2d 222 (2nd Cir 1985).
27 See Ch 8 on US law, amendment of the FSIA.
28 Virtual Defence v Moldova 133 F Supp 2d 1, 8 (DDC 2001) where the court refused to apply the act of state: ‘Here the court is not asked to question the validity of a sovereign act such as price-fixing, but is merely asked to adjudicate a contract claim’.
29 Alfred Dunhill of London v Republic of Cuba 425 US 682 (1976).
30 In Sharon v Time Inc 599 F Supp 538 (SDNY 1984) the findings of a commission appointed by the Israeli government regarding massacre in Palestinian refugee camps as a basis of libel did not require the jury to pass on their validity. But the dismissal of the claim may be appropriate when an act of state is involved, if its assumed validity precludes the possibility of any relief for an opposing party.
31 WS Kirkpatrick & Co v Environmental Tectonics 110 S Ct 701 (1990); Delapenna, ‘Deciphering the Act of State Doctrine’ (1990) 35 Vill L Rev 1. As to the situs of intangibles as a determinant of the Act of State doctrine, see Braka v Bancomer S N C762 F 2d 222 (2nd Cir 1985).
32 163 F 3d 163 (DCC Cir 1999).
33 M Swan ‘International Human Rights: Tort claims and the experience of US Courts. An introduction to US case law, key statutes and doctrines’ in C Scott, Torture as Tort (2001), Ch 3 (Act of State Doctrine).
34 But see as to this jurisdictional abstention rule, English law below, in particular Yukos Capital SARL v OJSC Rosneft Oil Co [2012] WLR(D) 186 at paras 95 et seq.
35 For example, International Association of Machinist and Aerospace Workers v OPEC 477 F Supp 553 (CD Cal 1979); 63 ILR 284; aff’d on act of state grounds; 649 F 2d 1354 (9th Cir 1981), 66 ILR 4, 13.
36 Baker v Carr 369 US 186 at 217 (1962).
37 Born, 857–64.
38 El-Shifa Pharmaceutical Industries Co v United States 607 F 3d 836, 856 and n 3 (DC Cir 2010) per Kavanaugh J.
39 Born, 55–6, Kadic v Karadzcic 870 F 3d 232 (2d Cir 1995).
40 Alperin v Vatican Bank 410 F 3d (532) at 560 (9th Cir 2005).
41 Sarei v Rio Tinto plc (7 August 2006), 487 F 3d 1193; 456 F 3d 1069 (9th Cir Cal, 2006). An appeal is pending to the Supreme Court.
42 Sarei v Rio Tinto plc (7 August 2006), 487 F 3d 1193; 456 F 3d 1069 (9th Cir Cal, 2006).
43 Joinder as a party of a head of State or government official (with the implied assent of the State) to proceedings between private parties would seem not to prevent the application of the doctrine of non-justiciability, Tajik Aluminium Plant v Abdukadir Ganievich Ermatov and Others [2006] EWHC 2374 (Comm) (28 July 2006).
44 Buttes Gas and Oil Co v Hammer [1982] AC 888 at 931–2, 938, 64 ILR 331, [1981] 3 All ER 616 at 628. Cf Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] 126 FCR 354 where the Australian High Court in Petrotimor held non-justiciable a challenge by an oil company relying on a concession granted by Portugal to the validity of the Seas and Submerged Lands Act 1973 which, in disregard of those concessionary rights, purported to vest Australia’s sovereign rights at international law in the continental shelf in the Commonwealth of Australia. The court held it would be necessary to determine a range of issues: the ambit of Portugal’s and Australia’s competing sovereign rights under international law in respect of the Concession Area; the international legality of the acquisition of East Timor by Indonesia; and whether or not the Timor Gap Treaty was illegal or void under international law. Applying the Lords’ decision in Buttes Gas the Australian court held these issues not ‘matters capable of judicial determination’ and stated: ‘The agreed facts themselves make it clear that there would be considerable embarrassment in the Court deciding what had been a most contentious issue between Portugal and Australia and which is still a subject of delicacy between the newly created East Timor’ (para 1521). See also Victoria Aircraft Leasing Ltd v United States (2005) 218 ALR 640.
45 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] AC 883, 103 ILR 340, per Lord Nicholls, para 29.
46 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) UKHL 19, [2002] AC 883, per Lord Steyn, para 114.
47 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), per Lord Hope, para 140.
48 The act of State doctrine is to be distinguished from the British Act of State which is a defence now only available in respect of acts committed outside the territory of the UK or its colonies against the person or property of an alien. It has no application to acts performed within British territory whether against a British national or an alien of a friendly State; and its ambit abroad may be further restricted by a cause of action now available under the Human Rights Act 1998 against a ‘public authority’ which acts in contravention of the Convention rights. Denning MR in the Court of Appeal decision relating to Buttes Gas and Oil Co v Hammer [1975] 2 All ER 51 at 58 sought to broaden this category to cover acts performed abroad by a foreign State as well as by the Crown and its servants. But the reasons for regulating the two situations differ. The British Act of State preventing British courts from enquiring into the legality of acts of the Crown and its servants is a rule of constitutional law.
49 R v Bow Street Magistrates court, ex parte Pinochet (No 1) [2000] 1 AC 61; 119 ILR, 106G per Lord Nicholls.
50 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), per Lord Hope.
51 Dicey, Morris and Collins on the Conflict of Laws (16th edn, 2012) (hereafter Dicey), para 5-043. Akande suggests that the act of State doctrine may be ‘a source of the forum non conveniens principle, in other words [he suggests] that the appropriate forum for resolving claims against foreign governments is not in the national courts of other states, but on the international plane’. Transcript of British Institute of International and Comparative Law Non Justiciability, Reappraisal of Buttes Gas in the Light of Recent Decisions, 15 January 2007.
52 Dicey, para 5-003 with a citation from Febder v St John Mildmay [1938] AC 1 at 12.
53 Luther v Sagor [1921] 3 KB 532; Princess Paley Olga v Weisz [1929] 1 KB 718 at 736; Peer International Corpn v Termidor Musical Publishers [2003] EWCA Civ 1156.
54 Kuwait Airways Corpn v Iraqi Airways Co (No 2) [2001] 1 All ER (Comm) 557, para 388, CA. In Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and Others [2006] EWCA Civ 1370, para 41, the court in rejecting a State’s claim as a plaintiff for damages under English law drew a distinction between acts in exercise of sovereign authority (not recoverable) and private acts which might be.
55 In re Helbert Wagg & Co Ltd [1956] 1 Ch 323. However, Upjohn J also stressed that ‘considerations of international law’ needed to be taken into account in determining the true limits of the doctrine. See also Mann, ‘International Delinquencies before Municipal Courts’ (1954) 70 ICLQ 181 at 202; Mann, Further Studies in International Law (1990), 177–83.
56 Settebello v BancoTotta and Acores [1985] 2 All ER 1025, but cf In re Banco Nacional de Cuba [2001] 1 WLR 2039.
57 [1986] 1 AC 368.
58 In the Hong Kong Aircraft case where a declaration was sought as to the ownership of 40 aircraft, Viscount Simon stated: ‘A government’s policy in buying or selling chattels which it owns is not subject to the review of foreign tribunals and whether its action in this regard is against the interests of those it is supposed to serve is a political question’. The view adopted by the lower courts that the Chinese ‘Nationalist government… got rid of these aeroplanes out of spite, merely to embarrass its inevitable successor [the Communist government] involves assumptions which their Lordships are not prepared to make’. Civil Air Transport v Central Air Transport Corpn [1953] AC 70 (PC) at 92.
59 ‘… the absence of a treaty or unambiguous agreement regarding controlling principles, even if the complaint alleges that the taking violates customary international law’ Sabbatino; Kuwait Airways Corpn v Iraqi Airways Co (No 2) [2001] 1 All ER (Comm) 557, CA at para 321.
60 [1921] 3 KB 532.
61 Luther v Sagor [1921] 3 KB 532 at 558.
62 ‘… to refuse to recognise legislation of a foreign State … could obviously embarrass the Crown in its relations with a sovereign State whose independence it recognised and with whom it had and hoped to maintain normal friendly relations’ Oppenheimer v Cattermole [1976] AC 279 per Lord Salmon at 282.
63 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883 at 1075, [2002] 3 All ER 209, [2002] 1 All ER (Comm) 843, [2002] 2 WLR 1353 at para 135. See also Jennings and Watts (eds), Oppenheim’s International Law I (9th edn, 1992), 365–7.
64 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), per Lord Nicholls, para 29.
65 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), per Lord Hope, para 149.
66 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), per Lord Steyn, para 114.
67 (2010) 59 ICLQ 981.
68 The Supreme Court’s decision in NML that the exception to immunity for a commercial transaction requires no such jurisdictional link with the UK is maybe at odds with UNCSI’s general requirement of such a jurisdictional connection, see Chs 7 and 17.
69 Dicey, 16th edn proposes that the general statement should be modified to read: ‘foreign public laws are not enforceable in this country because they are acts done in the exercise of sovereign authority which will not be enforced outside of the territory of the foreign State’, para 5-034.
70 Government of India v Taylor [1955] AC 491, [1955] 1 All ER 292 at 503, Lord Simmonds citing Rowlatt J in King of the Hellenes v Brostrom (1923) 16 Ll L Rep 193. Cf Fonu v Demirel and Another [2006] EWHC 3354 (Ch), [2007] 2 All ER 815, aff’d on other grounds; [2007] EWCA Civ 799, [2007] 1 WLR 2508, a claim brought by State banking authority, to enforce civil judgments in respect of assets deposited in banks arising from unpaid private debt.
71 Controller and Auditor General v Sir Ronald Davidson [1996] 2 NZLR 278, ILM 36 (1997) 721, 104 ILR 526.
72 Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and Others [2006] EWCA Civ 1370, [2007] 2 WLR 1062, CA; the outcome of this decision had been anticipated in obiter dicta in the Privy Council querying whether the claim amounted to enforcement, direct or indirect, of a public law of a foreign State. Equatorial Guinea v Bank of Scotland International [2006] UKPC 7. Dickinson (2006) 122 LQR 569, Briggs (2007) 123 LQR 182. O’Keefe (2006) 77 BYIL 554.
73 Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374 (21 December 2007).
74 In Barakat the court held: ‘there are positive reasons of policy why a claim by a State to recover antiquities which form part of its national heritage and which otherwise complies with the requirements of private international law should not be shut out’. See also Demirel v Fonu [2006] EWHC 3354 (Ch), [2007] 2 All ER 815, aff’d [2007] EWCA Civ 799 (26 July 2007); cf the Spycatcher case, Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30. See generally L Collins, ‘Revolution and Restitution: Foreign States in National Courts’, Hague Academy, Private Int Law Session (2007).
75 R (on application of Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin), 2003 3 LRC 335, DC, 126 ILR 727, per Simon Brown LJ, para 35.
76 Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and Others [2005] EWHC 2034 (QB), [2006] EWCA Civ 1370, [2007] 2 WLR 1062.
77 Ecuador v Occidental (No 1) 138 ILR 92 per Mance at para 76.
78 AY Bank Ltd (in liquidation) v Bosnia and Herzegovina and Others [2006] EWHC 830, [2006] 2 All ER (Comm) 463 at paras 53–4; O’Keefe casenote (2006) 77 BYIL 489; cf Republic of Croatia v Girocredit Bank AG der Sparkassen, Austrian Supreme Court, (1997) 36 ILM 1520; Federal Republic of Yugoslavia v Banque Commerciale pour l’Europe du Nord, French, Cour de Cassation; Federal Republic of Yugoslavia and National Bank of Yugoslavia v Republics of Croatia, Slovenia, Macedonia and Bosnia-Herzegovina, French, Cour de Cassation, 12 October 1999, 128 ILR 627, JDI 2000; note Cosnard where application to the national court was prior to conclusion of the ASI.
79 Ecuador v Occidental Exploration and Production Co [2005] EWHC 774 (Comm), para 76: ‘there is a foothold in domestic law for a ruling to be given on international law. That foothold is the right given by s 67 of the 1996 Act to a party to an arbitration, whose seat is in England, Wales and Northern Ireland, to challenge the jurisdictional ruling of the arbitral tribunal. That is a Municipal, private or domestic law right’.
80 Occidental Exploration and Production Co v Republic of Ecuador [2005] EWCA Civ 1116 (9 September 2005).
81 R v Prime Minister of the United Kingdom, ex parte Campaign for Nuclear Disarmament [2002] EWHC 2777; see also R (on the application of Gentle and Another) v Prime Minister and Others [2006] EWCA Civ 1690, paras 26–34, [2009] EWHC 1910 (Admin). See also R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 where the court declined relief with regard to representations to the US government on behalf of a British citizen held in Guantánamo Bay without access to a lawyer, noting that ‘(o)n no view would it be appropriate to order the Secretary of State to make any specific representations to the US, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time’.
82 [2012] EWHC 3728 (Admin) (21 December 2012) at para 49. See also Al-Haq, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1910 (Admin) where a declaration was dismissed in which it was sought that, assuming a flagrant violation of international law by Israel’s use of phosphorus bombs in Operation Cast Lead’s intensive bombardment of Gaza, the UK Government was under an obligation not to recognize the unlawful action of a foreign State or to render aid and assistance to that State. Pill LJ ruled that precisely what action the Government should take is a matter for the Government though he accepted any such action or lack of action is susceptible to judicial review applying the usual principles.
83 The writ of habeas corpus may be issued at the suit or on behalf of any prisoner unlawfully detained so as to bring him (now more often just the facts of the case) before the High Court, and his release ordered. Described as ‘perhaps the most important writ known to the constitutional law of England’ and as ‘the most efficient protection yet developed for the liberty of the subject’, the proper respondent to the writ is the party having custody, power, or control of the prisoner. It is not a proper remedy against the party who originally confined the prisoner if he no longer has him in custody and lacks power and control over him: ‘the object of the writ is not to punish previous illegality, but to release from present illegal detention’ (per Scrutton LJ in ex parte O’Brien [1923] 2 KB 361, 391. Interestingly Nada v Switzerland, ECtHR (App no 10593/08) 12 September 2012 applies Art 8 respect for private life in support of the same concept in respect of Swiss disproportionate restrictions imposed on freedom of movement.
84 Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah UKSC 48, [2012] 3 WLR 1087. On receipt of the reply that the US was not willing to relinquish control of the detainee to the UK, the majority upheld the Court of Appeal’s decision that the UK had showed that it lacked control in respect of the continued detention but Justices Hale and Carnwath considered that a further request to the US authorities was required.
85 Fawcett, Declining Jurisdiction in Private International Law (1995); Banque, Africaine de Development v Degboe, French Cour de Cassation ch Sociale, 25 January 2005, JDI (2005) 1142 note Corbion; RGDIP 110 (2006) 217 note Nicholas Houpais.
86 Golder v UK, Ser A No 18 (1975) 1 EHRR 524, paras 33–5.
87 Ringeisen v Austria, Ser A No 13 (1971) 1 EHRR 504.
88 Pauger v Austria (1998) 25 EHRR 105.
89 Sporrong and Lönnroth v Sweden, Judgment of 23 September 1982, Ser A No 52, 26.
90 Osman v UK ECHR 87/1997/871/1083, Judgment of 28 October 1998.
91 Holland v Lampen-Wolfe [1998] 1 WLR 188, CA, [2000] 1 WLR 827, HL.
92 Al-Adsani v UK (2002) 34 EHRR 273. For a full account of the proceedings in the UK and Strasbourg courts, see Ch 7.
93 As to the retention of immunity in the Crown Proceedings Act 1947 in the Crown’s favour barring a claim for damages for personal injuries incurred by a serving member of the armed forces while in training as a substantive and not a procedural delimination of a civil right, or ‘an entitlement under domestic law’, see Ch 2 discussing Matthews v Ministry of Defence [2003] 1 AC 1163, [2003] 1 All ER 689.
94 Thus, had Fogarty’s claim related to wrongful dismissal, rather than failure to appoint to a post, the grounds on which she alleged lack of proportionality might have been successful; those grounds were: no alternative remedy, her status as a habitual resident of the forum State, no obligation in international law on the UK to grant, as does UK SIA, s 16(9)(a), a total ban on proceedings concerning the employment of members of a diplomatic mission, and the foreign State’s waiver of immunity in earlier proceedings. Cf Réunion Aérienne v Libyan People’s Socialist Jamahiriya, Cour de Cassation 1e civ, Clunet 138 (2011) 953. See further Chapter 2.
95 Deweer v Belgium (1980) 2 EHRR 439, 460, para 49 and Bramelid v Sweden (1982) 29 DR 64, cited in Stretford v Football Association [2006] EWHC 479 (Ch), para 21. Cf Petrochilos, Procedural Law in Arbitration (2004), Ch 4.
96 AIG Capital Partners Inc & Another v Kazakhstan [2005] EWHC 2239 (Comm), [2006] 1 All ER 284, paras 62–84.
97 Grovit v De Nederlandsche Bank NV [2005] EWHC 2994 (QB), [2006] 1 WLR 3323, upheld on appeal. Cf Waite and Kennedy v Germany (1999) 30 EHRR 261, 118 ILR 121 at 136 relating to international organizations: ‘The test of proportionality could not, however, be applied in such a way as to compel an international organisation to submit itself to national litigation with regard to employment conditions prescribed under national law. To do so would thwart the proper functioning of international organisations and thus contrary to the trend towards extending and strengthening international cooperation.’
98 Gusinskiy v Russia 70276/01 (First Section) 19 May 2004.
99 Yukos Capital SARL v OJSC Rosneft Oil Co [2012] WLR(D) 186; Yukos v Russian Federation [2009] ECHR 287.
100 Yukos v Russian Federation [2009] ECHR 287.
101 At paras 59–61. AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2011] 4 All ER 1027, per Lord Collins at paras 97–101.
102 At para 69; KAC v IAC (Nos 4 and 5) para 29 per Lord Nicholls.
103 At paras 73, 86–7, citing Lord Lindley in Pemberton v Hughes [1899] 1 Ch 781 at 790: ‘… English courts never investigate the propriety of the proceedings in the foreign court, unless they offend against English views of substantial justice’ (emphasis added).