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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Belhaj & Anor v Straw & Ors (Rev 1) [2017] UKSC 3 (17 January 2017) URL: http://www.bailii.org/uk/cases/UKSC/2017/3.html Cite as: [2017] 3 All ER 337, [2017] AC 964, [2017] 2 WLR 456, [2017] WLR(D) 51, [2017] HRLR 4, [2017] UKSC 3 |
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[2017] UKSC 3
On appeals from: [2014] EWCA Civ 1394 and [2014] EWHC 3846 (QB)
JUDGMENT
Belhaj and another (Respondents) v Straw and others (Appellants)
Rahmatullah (No 1) (Respondent) v Ministry of Defence and another (Appellants)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hughes
JUDGMENT GIVEN ON
17 January 2017
Heard on 9, 10, 11 and 12 November 2015
Appellants (Rt Hon Jack Straw MP and 6 others) Rory Phillips QC Sam Wordsworth QC Karen Steyn QC Sean Aughey (Instructed by The Government Legal Department) |
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Respondents (Belhaj and another) Richard Hermer QC Ben Jaffey Maria Roche (Instructed by Leigh Day) |
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Appellant (Ministry of Defence and another) James Eadie QC Karen Steyn QC Melanie Cumberland (Instructed by The Government Legal Department) |
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Respondent (Rahmatullah) Phillippa Kaufmann QC Edward Craven (Instructed by Leigh Day) |
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Respondent (Rahmatullah) Richard Hermer QC Nikolaus Grubeck Maria Roche (Instructed by Deighton Pierce Glynn) |
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Interveners (UN Special Rapporteur on Torture and another) Nathalie Lieven QC Ravi Mehta Shane Sibbel (Instructed by Bhatt Murphy Solicitors) |
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Interveners Martin Chamberlain QC Oliver Jones Zahra Al-Rikabi (Instructed by The Redress Trust)
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Interveners:- (1) International Commission of Jurists (2) JUSTICE (3) Amnesty International (4) REDRESS
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LORD MANCE:
Table of Contents
I Introduction 1
II The claimants' allegations 2
III Summary of conclusions 6
IV State immunity 9
V Foreign act of state 19
VI Three types of foreign act of state 21
VII Analysis of the case law .. 26
(i) Carr v Fracis Times & Co 26
(ii) The United States authorities 27
(iii) Buttes Gas v Hammer 32
VIII Application of the first and second types of foreign act of state 36
IX Application of third type of foreign act of state 51
X Miscellaneous points 63
XI Overall Conclusion 64
1. The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter-relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458 (" Yukos v Rosneft").
6. In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was on 28 February 2004 detained by British forces in Iraq on suspicion of being a member of Lashkar-e-Taiba, a proscribed organisation with links to Al-Qaeda. The UK and the USA were at the time occupying forces in Iraq, where there was a situation of international armed conflict. Shortly after his original detention, within a matter of days at most, Mr Rahmatullah was transferred into the custody of US forces, and by the end of March 2004 they had transferred him to Bagram Airbase in Afghanistan, where he was detained for over ten years without charge or trial, until released on 15 May 2014. He alleges that he was subjected to severe mistreatment in both British and United States detention. His claims are put under the like heads to Mr Belhaj's and Mrs Boudchar's, with assault and torture as additions. Again, the claims allege in various terms that the relevant appellants acted in concert or combination with the United States authorities, or assisted, encouraged or were complicit in relation to the alleged unlawful detention and mistreatment by the United States authorities. Again, the tenor of the allegations is that the United States authorities were the actors, even if they were being encouraged or engaged, procured, or utilised by the appellants to do as they allegedly did. Leggatt J regarded the claims relating to Mr Rahmatullah's detention by British forces and transfer into the custody of US forces as barred by the defence of Crown act of state, assuming that arrest and detention were authorised pursuant to lawful United Kingdom policy. The appeal from that aspect of his judgment was joined with the appeal in Mohammed (Serdar) v Ministry of Defence [2015] EWCA Civ 843; [2016] 2 WLR 247. The Court of Appeal allowed the appeal on the basis that Crown act of state is a nuanced defence, applicable only where "there are compelling considerations of public policy which require the court to deny a claim founded on an act of the Executive performed abroad" (para 359), with the result that there must be a trial on the facts on the issue of Crown act of state. In its separate judgment of today's date from that decision of the Court of Appeal, the Supreme Court restores (though for different reasons) Leggatt J's conclusions that Crown act of state is in principle available in respect of the United Kingdom's detention and transfer to US custody of Mr Rahmatullah. The issues now before the Supreme Court relate solely to Mr Rahmatullah's claims in tort in respect of alleged acts or omissions of US personnel while he was in US detention. The claims are brought against the Ministry of Defence and the Foreign and Commonwealth Office, both of which are the appellants in Rahmatullah.
8. I note at this point that the appellants do not suggest that the tortious claims against them which are in issue on these appeals can or do attract a defence of Crown act of state. The leading authorities on Crown act of state are now Nissan v Attorney General [1970] AC 179 and the Supreme Court's separate judgment, delivered today in the cases of Rahmatullah and Serdar Mohammed (para 6 above). In Nissan, Lord Pearson said (at p 237F-G) that:
"it is necessary to consider what is meant by the expression 'act of state', even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court."
Nissan concerned the Crown's occupation of a hotel while assisting to maintain peace under an agreement made between the United Kingdom and Cyprus. The doctrine of Crown act of state was held not to bar a claim for compensation. Lord Morris said (at p 217D) that the acts in question in that case (of feeding and housing troops in the hotel) were "far removed from the category of transactions which by reason of being a part of or in performance of an agreement between states are withdrawn from the jurisdiction of the municipal courts." And Lord Wilberforce indicated (pp 235H-236A) that between the acts complained of and the pleaded agreement with the Government of Cyprus, the link was "altogether too tenuous" for the Crown to be able to invoke Crown act of state - "if accepted as sufficient to attract the description of act of state it would cover with immunity an endless and indefinite series of acts, judged by the officers in command of the troops to be necessary, or desirable, in their interest".
11. For the reasons which I shall set out, I have reached the following conclusions:
State immunity (paras 12 to 31):
(i) The appellants' pleas of state immunity fail because the various foreign states (Malaysia, Thailand, the United States and Libya) are not impleaded, and their legal position is not affected, either directly or indirectly by the claims in tort advanced by the respondents solely against the appellants: para 31.
Foreign act of state (paras 32 to107):
(ii) The concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry: para 34.
(iii) Three types of foreign act of state can be identified under current English authority:
a) The first is the rule of private international law, whereby a foreign state's legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within the foreign state's jurisdiction: para 35.
b) The second is that a domestic court will not normally question the validity of any sovereign act in respect of property within the foreign state's jurisdiction, at least in times of civil disorder: para 38.
c) The third is that a domestic court will treat as non-justiciable - or, to use language perhaps less open to misinterpretation, abstain or refrain from adjudicating upon or questioning - certain categories of sovereign act by a foreign state abroad, even if they occur outside the foreign state's jurisdiction: para 40.
(iv) The appellants' case, to the effect that the second and/or third types should be expanded or combined so as to cover all sovereign ( jure imperii) acts by a foreign state anywhere abroad outside the jurisdiction of the domestic court whose jurisdiction is in issue, should be rejected:
a) To the extent that it exists at all, the second type of foreign act of state is and should be limited to acts relating to property within the jurisdiction of the foreign state: para 74 to 78.
b) If (contrary to a), the second type were to be viewed as covering acts directed against the person, it would be subject to a public policy exception, which would enable at least the allegations of complicity in torture, unlawful detention, enforced rendition and disappearance made in these cases to be pursued in the English courts: para 80.
c) The third type of foreign act of state is not limited territorially. Whether an issue is non-justiciable falls to be considered on a case-by-case basis. Considerations both of separation of powers and of the sovereign nature of foreign state or inter-state activities may lead to a conclusion that an issue is non-justiciable in a domestic court: paras 90 to 95. But in deciding whether an issue is non-justiciable, English law will have regard to the extent to which the fundamental rights of liberty, access to justice and freedom from torture are engaged by the issues raised: paras 98 and 101.
d) I see little attraction in and no basis for accepting a yet further doctrine whereby United Kingdom courts might be precluded from investigating acts of a foreign state, if the Foreign Office communicated to it the Government's view that this would embarrass the United Kingdom in its international relations (though I accept that consequences for international relations may feed into the question of justiciability or abstention under the third type of foreign act of state): para 41.
e) In the present case, the circumstances as they are presently before the Supreme Court do not lead to a conclusion that the issues are non-justiciable in a domestic court: paras 96 to 105.
f) Had a contrary conclusion been reached, the result would have been that, although the relevant foreign states could, at least in theory, have been sued within their own jurisdictions for the torts alleged to have been directly committed by their own officers, the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction: para 102.
Miscellaneous points (paras 108 to 110):
(v) It is unnecessary to reach any final determination of the respondents' case:
a) that, in so far as what is alleged amounts to complicity in torture, the United Nations Convention against Torture (Treaty Series No 107 (1991)) obliges states to provide a universal civil remedy in respect of torture wherever committed in the world, at least when (allegedly) committed by or with the connivance of United Kingdom citizens, and that any otherwise applicable type of foreign act of state should be modified accordingly. It suffices to say that I would as at present advised see no basis for differing from the rejection of this argument in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitution Affairs intervening) ("Jones v Saudi Arabia") [2006] UKHL 26; [2007] 1 AC 270.
b) that article 6 of the Convention rights scheduled to the Human Rights Act 1998 is engaged by and renders impermissible in the present circumstances any reliance by the appellants on either state immunity or foreign act of state. Again, this would face a difficulty raised by the House of Lords' conclusions in Holland v Lampen-Wolfe [2000] 1 WLR 1573 and Jones v Saudi Arabia, paras 14 and 64, that article 6 is not engaged by a plea of state immunity. The European Court of Human Rights has reached a contrary conclusion (see eg Al-Adsani v United Kingdom (2001) 34 EHRR 11; Sabeh El Leil v France 54 EHRR 14), and it would have been necessary to consider this disagreement. Foreign act of state, on the other hand, operates, even under the case law of the European Court of Human Rights, as a substantive bar to liability or adjudication (see Roche v United Kingdom 42 EHRR 30; Markovic v Italy 44 EHRR 52), and so would not, if applicable, engage article 6. Further, even if article 6 were engaged, the question would then have arisen whether it rendered impermissible any reliance on either state immunity or foreign act of state. But, since I would hold that the appellants cannot rely on either in any event, it is unnecessary to go further into this.
Conclusion:
(vi) These conclusions lead to the conclusion that the appellants are not entitled to rely on state immunity or the doctrine of foreign act of state to defeat the present proceedings, and the appeals must accordingly be dismissed and the cases proceed to trial. The detailed reasoning supporting them follows.
12. State immunity is, as indicated, a principle of customary international law recognised at common law, but now provided for by the State Immunity Act 1978. The International Court of Justice has described state immunity as occupying "an important place in international law and international relations" and as deriving from "the principle of sovereign equality of states, which, as article 2, para 1 of the United Nations Charter makes clear, is one of the fundamental principles of the international legal order": Jurisdictional Immunities of the State, Germany v Italy, judgment of 3 February 2012 [2012] ICJ Rep, p 99. The "absolute independence of every sovereign authority" and the "international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state" were similarly identified as the bases of state immunity by Brett LJ in the seminal common law case of The Parlement Belge (1880) 5 PD 197, 214-215.
13. Section 1 of the 1978 Act provides:
"General immunity from jurisdiction.
(1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question."
The Act specifies various exceptions to state immunity, including, but not limited to, submission to the jurisdiction (section 2), commercial contracts and contracts to be performed in the United Kingdom (section 3), personal injuries and damage to property (section 5) and ownership, possession and use of property (section 6). Sections 5 and 6 read:
"5. Personal injuries and damage to property.
A state is not immune as respects proceedings in respect of -
(a) death or personal injury; or
(b) damage to or loss of tangible property,
caused by an act or omission in the United Kingdom.
6. Ownership, possession and use of property.
(1) A State is not immune as respects proceedings relating to -
(a) any interest of the state in, or its possession or use of, immovable property in the United Kingdom; or
(b) any obligation of the state arising out of its interest in, or its possession or use of, any such property.
(2) A state is not immune as respects proceedings relating to any interest of the state in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.
(3) The fact that a state has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts.
(4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property -
(a) which is in the possession or control of a state; or
(b) in which a state claims an interest,
if the state would not have been immune had the proceedings been brought against it or, in a case within para (b) above, if the claim is neither admitted nor supported by prima facie evidence."
14. It follows that state immunity is a personal immunity, ratione personae, possessed by the state in respect of its sovereign activities ( acta jure imperii) so far as these do not fall within any of the exceptions. When state immunity exists, the nature and gravity of the alleged misconduct are irrelevant. Even the admitted illegality of the acts complained of "does not alter the characterisation of those acts as acta jure imperii": Jurisdictional Immunities, para 60; see also Jones v Saudi Arabia [2007] 1 AC 270, where the House rejected "the argument that torture or some other contravention of a jus cogens cannot attract immunity rationae materiae because it cannot be an official act": per Lord Hoffmann at para 85.
15. The classification does not appear in the 1978 Act, but the situations in which state immunity applies are commonly described as involving either direct or indirect impleading of the state. A state is (directly) impleaded by legal proceedings taken against it without its consent: Cia Naviera Vascongado v SS Cristina (The "Cristina") [1938] AC 485, 490, per Lord Atkin. Lord Atkin also identified a second situation of immunity in which, even though the state may not be a party, the proceedings relate to state property. In so far as the state is put in a position where it must either forego or appear to defend its property interest, this situation can readily be described as one of indirect impleading: see eg The Parlement Belge (1880) 5 PD 197, 217-219, where the Court of Appeal did just that. On the other hand, immunity exists, as will appear, in some situations where a state's property interests are affected in ways which it may not be so natural to identify as indirect impleading, and these are sometimes therefore treated separately: see eg United States of America v Dollfus Mieg et Cie SA [1952] AC 582, where Lord Porter at pp 612 and 614 referred to an action "impleading the two governments or affecting their rights" and to the foreign governments being "implicated or their rights invaded", while Lord Radcliffe in contrast at p 616 treated it as a suit which might affect a sovereign's interest in property under the head of proceedings which "amount in one way or another to a suit against the sovereign"; and see recently in Canada Khadr v The Queen 2014 FC 1001, para 35 per Mosley J.
"It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party."
In contrast, Lord Hoffmann at para 69 said that:
"... 'state' in section 1(1) of the [State Immunity Act] and 'government', which the term 'state' is said by section 14(1)(b) to include, must be construed to include any individual representative of the state acting in that capacity, as it is by article 2(1)(b)(iv) of the Immunity Convention. The official acting in that capacity is entitled to the same immunity as the state itself."
It is unnecessary to consider which of these two formulations may be preferable, although Lord Hoffmann's should not be misunderstood as suggesting that a state official possesses his own personal immunity which he can waive. His immunity depends upon the state's, and can only be waived by the state. The immunity in respect of acts done in the course of their office extends to state officials ratione materiae even after they have left office (as well as to heads of state, who enjoy an additional immunity ratione personae while in office): see eg R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 202G-H, 269F and 281C-G, per Lords Browne-Wilkinson, Millett and Phillips, citing Hatch v Baez (1876) 7 Hun 596.
18. Whatever classification be adopted, the property cases are instructive as to the boundaries of state immunity. They originate in the context of admiralty proceedings in rem: see eg The Parlement Belge, an action in rem against a mail ship belonging to the King of the Belgians in his public capacity, and The Cristina itself. In the light of modern understanding of the nature of an action in rem, it might be argued that such an action involves from the outset direct impleading: see Republic of India v India Steamship Co Ltd (The Indian Grace) [1997] UKHL 40; [1998] AC 878. Be that as it may be, the House in The Cristina approved a number of previous authorities indicating that a state might be impleaded by proceedings against a vessel of which it had de facto possession, or "such rights of direction and control, without possession, as arise from requisitioning" (referring to The Broadmayne [1916] P 64), when those proceedings would, "if successful ... result in an order of the court affecting that possession or those other rights": see United States of America v Dollfus Mieg et Cie SA [1952] AC 582, 617, per Lord Radcliffe.
20. Lord Radcliffe faced squarely the problem that title was what was in issue, saying:
"But certainly a special difficulty begins when he [the sovereign] is not actually named but the suit is one which may result in a judgment or order that will affect his interest in some piece of property. Even to say that much begs one important question, for it assumes that he has a valid interest in that property: whereas a stay of proceedings on the ground of immunity has normally to be granted or refused at a stage in the action when interests are claimed but not established, and indeed to require him to establish his interest before the court (which may involve the court's denial of his claim) is to do the very thing which the general principle requires that our courts should not do."
"The property of a sovereign state, which is an abstraction, must be in the physical possession of some actual person, and I do not see any distinction of substance in a matter of this kind between the possession of a servant of the state and the possession of its bailee when the bailment is of such a nature as that of the bank in this case. Indeed, I think that the Commission's 'possession and control' of the gold bars in the hands of the bank amounted to a form of property more substantial than that which HM Government acquired by requisitioning the Broadmayne. ...
The suit began as a claim in detinue. That means that the court was going to be asked or at any rate could be asked to make an order upon the bank to hand over the bars to the plaintiffs. Such an order would unquestionably interfere with the Commission's possession of them and compel the Commission, if they wished to recover possession, to come to court and try to get them back from the plaintiffs. I cannot feel any doubt that such a suit offends against the principle of sovereign immunity."
In short, the Commission would no longer be entitled to look to the Bank as bailees, but would have as owners to establish title by proceedings against Dollfus Mieg.
"... when I consider the real nature of a claim for damages for conversion I come to the same conclusion. Subject to the payment of costs and special damages (if there are any) an action for damages for conversion can always be stayed if the defendant offers to hand over the property in dispute. In that sense a suit for damages for conversion is an attempt to use the court's process to interfere with the existing possession of the chattel the title to which is in dispute. If the defendant continues to resist and damages are awarded against him he may keep the chattel and pay the damages; but if he does he becomes entitled, if he is a bailee, to set up the plaintiffs' title to the goods, which he has thus paid for, against his own bailor. In other words the court's judgment in the personal action against him would materially affect the existing right of his bailor in respect of the possession and disposal of the chattel. The result of a judgment in damages has thus some analogy to a sale by the court of a chattel which is in the possession or under the requisition of a foreign sovereign: if the sale cannot be ordered in the one case because to order it would be to use the court's process against the sovereign, then the judgment cannot be rendered in the other."
Again, the Commission would no longer be able to look to the Bank of England as simple bailees, but would face the issue that the Bank now stood, at least in theory, in the same position as Dollfus Mieg.
"A suit by a third party, the Nizam, is calculated and intended to interfere with the title of Rahimtoola and his principals, the Government of Pakistan, and with their possession or control of their property. It can only be maintained if the Government of Pakistan take a course which their sovereign dignity entitles them to reject and descend into the arena."
The appellants argue on the present appeals that state immunity was recognised as existing in Rahimtoola, although the State of Pakistan would not have been bound by a judgment in proceedings involving a "third party". But that was not how Viscount Simonds saw the matter - unsurprisingly since Mr Rahimtoola was acting in his official capacity and proceedings against him therefore involved, on their face, state property.
"Article 5 State immunity
A state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention.
Article 6 Modalities for giving effect to state immunity
1. A state shall give effect to state immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another state and to that end shall ensure that its courts determine on their own initiative that the immunity of that other state under article 5 is respected.
A proceeding before a court of a state shall be considered to have been instituted against another state if that other state:
a. is named as a party to that proceeding; or
b. is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other state."
By article 2(1)(b), "State" is defined in broad terms, as meaning: (i) the State and its various organs of government; (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; and (iv) representatives of the State acting in that capacity.
"This rule, however, rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot, without the consent of that third state, give a decision on that issue binding upon any state, either the third state, or any of the parties before it."
The case is distinct from the present. The International Court was, above all and as in the domestic case of Dollfus Mieg, being asked to determine the immediate destination of specific property. In the courts below, Leggatt J at para 78 distinguished East Timor and the Court of Appeal at para 42 distinguished Monetary Gold as cases about international jurisdiction, required in the case of the International Court to be based upon consent, in contrast with which domestic courts exercise compulsory jurisdiction over those within their reach. That is correct as far as it goes, but states' domestic jurisdiction also depends on consent in contexts where state immunity otherwise exists. The situation is therefore nuanced. Nevertheless, Monetary Gold is not about state immunity, and does not on its facts assist on the issue now before the court, even by way of analogy.
"Public policy dominates one of the most difficult and most perplexing topics which, in the field of foreign affairs, may face the municipal judge in England: the doctrine of the foreign act of State displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of speculation."
In Yukos v Rosneft the Court of Appeal suggested (para 115) that, in view of the limitations on foreign act of state recognised in the case law:
"The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed."
Leggatt J observed (para 134) that, when a rule is said to be defined by its absence, there is reason to wonder whether there is in fact such a rule. That aphorism goes too far. As Dr Francis Mann has suggested, quoting Cardozo J (Mann, Conflict of Laws and Public Law [1971] 1 Recueil des Cours 107, pp 148-149, 151-156 and Foreign Affairs in English Courts (1986) p 164), what is required is to approach the concept of foreign act of state at a more particular level of enquiry, by enunciating principles - rather than maxims which, "starting as devices to liberate thought, ... often end by enslaving it". Or, to adopt a phrase from Professor Campbell McLachlan's Foreign Relations Law (CUP, 2014), para 12.129, what is required is a "much more fine-grained approach - disaggregating the general category in order to achieve the 'specialization of the principle' in its application to particular classes of case".
35. Three types of foreign act of state are in my opinion identifiable under current English authority. First, there is a well-established rule of private international law, according to which a foreign state's legislation will be recognised and normally accepted as valid, in so far as it affects property, whether movable or immovable, situated within that state when the legislation takes effect: Dicey, Morris and Collins, The Conflict of Laws, 15th ed (2012), rule 137; and see Carr v Fracis Times & Co [1902] AC 176 (seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law), Luther v Sagor [1921] 23 KB 532 (seizure by decree of Russian revolutionaries later recognised as the government), Princess Paley Olga v Weisz [1929] 1 KB 718 (seizure by similar decrees) and Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 (compulsory purchase of shares in Spain).
36. Movable and immovable property is thus subject to a territorial principle. So too is domestic trade mark protection based on a reputation acquired domestically, which cannot therefore be affected by foreign legislation: Lecouturier v Rey [1910] AC 262, cited by Warrington LJ in Luther v Sagor, pp 548-549. Under familiar conflict of laws principles, different connecting factors govern the recognition of foreign state legislation in other spheres. For example, foreign legislation affecting contractual rights will be recognised if enacted by the state whose law governs the contract: Dicey, Morris and Collins, op cit, rule 227(1); and see eg In re Helbert Wagg & Co Ltd's Claim [1956] Ch 323 and Adams v National Bank of Greece and Athens [1961] AC 255. And, if one moves away from state legislation to adjudication by state courts, yet further connecting factors govern the recognition of foreign judgments. Leaving aside treaty arrangements and the European regime of the Brussels Regulation and Lugano Convention, the recognition of foreign judgments depends upon the foreign court having had jurisdiction in the limited international sense recognised by English courts and examined in Dicey, Morris & Collins, op cit, rules 43 to 47.
37. However recognition will, exceptionally, be refused, when recognition would conflict with a fundamental principle of domestic public policy. The classic authorities in respect of legislation affecting property or contracts are Oppenheimer v Cattermole [1976] AC 249 (non-recognition of Nazi laws discriminating against Jews) and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 (non-recognition of an Iraqi law confiscating the Kuwait Airways fleet, which was in Iraq, and giving it to Iraqi Airways in undeniable breach of Security Council Resolutions). Similarly, recognition may be denied to foreign judgments where this would be contrary to public policy: Dicey, Morris & Collins, rule 51; see also Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804 (" Altimo") and Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458.
"This court will not inquire into the legality of acts done by a foreign Government against its own subjects in respect of property situate in its own territory" (per Russell LJ at p 736)
See also per Scrutton LJ at pp 723-724 and Sankey LJ at pp 726-730. Similar reasoning, derived from United States authority including Oetjen v Central Leather Co (1918) 246 US 297 (para 51 below), had appeared in AOAM v James Sagor & Co [1920] 3 KB 532, in particular in the judgment of Warrington LJ at p 549. The issue there was however whether to recognise a confiscatory decree, which was treated by the other members of the court simply as Russian legislation. Other direct authority on this type of foreign act of state is limited, though there are some general dicta wide enough to embrace it as well as the third type of foreign act of state: see eg Lord Sumner's statement in Johnstone v Pedlar [1921] 2 AC 262, 290 that
"Municipal Courts do not take it upon themselves to review of the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign state done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification";
See also Lord Wilberforce's dicta in Buttes Gas, to which reference is made in para 59 below. The existence of this second type of act of state has not in fact been challenged on this appeal. However, assuming (as I am prepared for present purposes to do without deciding) that it exists, it will be necessary to examine more closely its scope and rationale. It may be regarded, like the first type of act of state, as a rule of private international law - though this can hardly be in a literal conflicts of "laws" sense since the effect of the relevant act is determined not by law, but regardless of law. Perram J called it in Habib v Commonwealth [2010] FCAFC 12; (2010) 265 ALR 50 at paras 38 and 43 "a super choice of law rule". In these circumstances, it can, so far as it exists, just as well be understood as a special rule of abstention: witness Scrutton LJ's reference to an "act of state into the validity of which this Court would not enquire" in Princess Paley Olga v Weisz [1929] 1 KB 718, 723-724.
42. Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 is the leading English authority on the third type. It was recently considered by this Court in dicta in Shergill v Khaira [2014] UKSC 33; [2015] AC 359. In Buttes Gas, the claimant Buttes Gas sued Dr Hammer and Occidental Oil Company for slander, eliciting a counterclaim for an alleged conspiracy between Buttes Gas, the Ruler of Sharjah and others to cheat and defraud, and to procure the British government and others to act unlawfully to the detriment of, Dr Hammer and Occidental Oil. The counterclaim related to oil exploration rights off the island of Abu Musa in the Persian Gulf, and raised a whole series of boundary and other international and inter-state law issues, set out by Lord Wilberforce on p 937 of the report. The claimant applied to strike out the counterclaim. Lord Wilberforce, giving the sole reasoned speech concluded at p 938A-C:
"It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are - to follow the Fifth Circuit Court of Appeals - no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were 'unlawful' under international law. I would just add, in answer to one of the respondents' arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment."
Having concluded that the counterclaim was non-justiciable, the House noted the injustice which could follow if the claim alone proceeded. In the event, the House was able, without more, to take advantage of the claimant's offer to submit to a stay of the claim as a term of dismissal of the counterclaim.
43. In Shergill v Khaira [2015] AC 359 this Court referred to the third type of foreign act of state under the head of non-justiciability which it said (para 41) "refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter" (even though it would otherwise be within the English courts' jurisdiction under, for example, the Brussels Regulation and Lugano Convention or the rules of court). The court went on (paras 41-43) to say that such cases "generally fall into one of two categories":
(i) The first was where the issue was "beyond the constitutional competence assigned to the courts under our conception of the separation of powers", of which the "paradigm cases are the non-justiciability of certain transactions of foreign states and of proceedings in Parliament". The distinctive feature of such cases was that "once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable". Buttes Gas falls into this category.
(ii) The second category was of cases not involving private legal rights or obligations or reviewable matters of public policy, and included "issues of international law which engage no private right of the claimant or reviewable question of public law". Such issues were not justiciable in the abstract, but "must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable". Examples of this second category, where no private right or reviewable question of public law was engaged, are Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, where the Nabob was seeking to sue for an account due under an international treaty, and JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, where the House of Lords stated that it is "axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law" (p 499F-G per Lord Oliver of Aylmerton).
"rests, and must rest, upon the authority of the sovereign of Muscat; and it appears to me that any other decision would be open to very serious questions of policy if, in every case where the lord of a country has declared what the law of his own country is, it were open to an English tribunal to enter into the question and to determine, as against him, what was the law of his country."
The judgment can, on the other hand, also be read as positively emphasising the significance of establishing a legal base for an act such as expropriation. The same may be said of the earlier authority of Dobree v Napier (1836) 2 Bing (NC) 781, where (it appears from the fourth declaration) a vessel supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law (p 796). (Today, the action against Sir Charles Napier would also be expected to fail on grounds of sovereign immunity, wherever the seizure took place. The fact that the seizure occurred in the context of a civil war might also bring into play the third type of act of state.)
"We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory."
But, for the rest and on its facts, Hatch v Baez can be seen as a clear case of sovereign immunity, enjoyed, and not so far as appears waived, by the Dominican Republic, as well as a case dating (like the Duke of Brunswick's case, which Gilbert J cited) from a time when the strands of state immunity and foreign act of state were not distinctly separated. Similarly, one would today expect the claim in Underhill v Hernandez to have been met by a plea of state immunity.
"Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."
Throughout much of the rest of his short judgment the focus was on the existence of civil war, and it is relevant to note that he went on (p 254):
"The decisions cited on plaintiff's behalf are not in point. Cases respecting arrests by military authority in the absence of the prevalence of war; or the validity of contracts between individuals entered into in aid of insurrection; or the right of revolutionary bodies to vex the commerce of the world on its common highway without incurring the penalties denounced on piracy; and the like, do not involve the questions presented here." (italics added)
"does not deprive the courts of jurisdiction once acquired over a case. It requires only that, when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision."
Discussing the conceptual basis for this "rule of decision", the court went on (pp 421-422):
"We do not believe that this doctrine is compelled either by the inherent nature of sovereign authority, as some of the earlier decisions seem to imply, see Underhill, supra; American Banana, supra; Oetjen, supra, at 303, or by some principle of international law. ...
That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject fail to follow the rule rigidly ...
If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law."
A footnote to the second sentence recorded that a doctrine in similar terms had been articulated in England in Luther v Sagor and Princess Paley Olga, with which the US Supreme Court compared Anglo-Iranian Oil Co v Jaffrate (The Rose Mary) [1953] 1 WLR 246, [1953] Int'l L Rep 316 (Aden Sup.Ct) as endorsing an exception to the doctrine if the foreign act violated international law. The Supreme Court cannot have been informed of Upjohn J's disapproval of that general exception in In re Helbert Wagg & Co Ltd's Claim [1956] 1 Ch 323, 346-349. The footnote went on to observe that "Civil law countries, however, which apply the rule make exceptions for acts contrary to their sense of public order."
53. The Court explained its own view of act of state as follows (p 423):
"The act of state doctrine does, however, have 'constitutional' underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere."
54. Subsequent to Sabbatino, Congress passed the Hickenlooper amendment, providing that no United States court should in future decline, on the ground of the act of state doctrine, to give effect to the principles of international law, including the principles of compensation, except in any case where the President determined application of that doctrine to be required by the foreign policy interests of the United States. At least at this point, therefore, United States law departed significantly from any principle in English common law. Still more recently, the Supreme Court in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn, International 493 US 400 endorsed the basis of the doctrine explained in Sabbatino (p 404), underlining that it is "not some vague doctrine of abstention but a ' principle of decision' binding on federal and state courts alike". It endorsed the statement in Ricaud that "the act within its own boundaries of one sovereign state ... becomes ... a rule of decision for the courts of this country" (p 406). However, it went on: "Act of state issues only arise when a court must decide - that is, when the outcome of the case turns upon the effect of official action by a foreign sovereign."
"Regardless of what the court's factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires."
"Petitioners insist, however, that the policies underlying our act of state cases - international comity, respect for the sovereignty of foreign nations on their own territory, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign relations - are implicated in the present case because, as the District Court found, a determination that Nigerian officials demanded and accepted a bribe 'would impugn or question the nobility of a foreign nation's motivations', and would 'result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the United States. ...
These urgings are deceptively similar to what we said in Sabbatino, where we observed that sometimes, even though the validity of the act of a foreign sovereign within its own territory is called into question, the policies underlying the act of state doctrine may not justify its application. We suggested that a sort of balancing approach could be applied - the balance shifting against application of the doctrine, for example, if the government that committed the 'challenged act of state' is no longer in existence. 376 US, at 428. But what is appropriate in order to avoid unquestioning judicial acceptance of the acts of foreign sovereigns is not similarly appropriate for the quite opposite purpose of expanding judicial incapacities where such acts are not directly (or even indirectly) involved. It is one thing to suggest, as we have, that the policies underlying the act of state doctrine should be considered in deciding whether, despite the doctrine's technical availability, it should nonetheless not be invoked; it is something quite different to suggest that those underlying policies are a doctrine unto themselves, justifying expansion of the act of state doctrine (or, as the United States puts it, unspecified 'related principles of abstention') into new and uncharted fields."
This passage bears out an earlier observation by Lord Wilberforce in Buttes Gas (p 934C) that "United States' courts have moved towards a 'flexible' use of the doctrine [of act of state] on a case to case basis": see para 57 below.
"Granted this, and granted also, as the respondents argue, that United States' courts have moved towards a 'flexible' use of the doctrine on a case to case basis, there is room for a principle, in suitable cases, of judicial restraint or abstention."
Lord Wilberforce then examined where this approach had led the United States courts in litigation on the very same situation as that before the House. He quoted in extenso from a letter written by the Legal Adviser to the US Department of State, discounting any suggestion that issues relating to disputed territorial jurisdiction should be analysed by reference to "the so-called Act of State doctrine which is traditionally limited to governmental action within the territory of the respective state", and arguing that judicial self-restraint "rather follows from the general notion that national courts should not assume the functions of arbiters of territorial conflicts between third powers even in the context of a dispute between private parties" (p 936B-C). In essence, this was the argument that Lord Wilberforce accepted. He summarised the approach he took in relation to the United States case law as follows (pp 936F-937A):
"The constitutional position and the relationship between the executive and the judiciary in the United States is neither identical with our own nor in itself constant. Moreover, the passages which I have cited lay emphasis upon the 'foreign relations' aspect of the matter which appeared important to the United States at the time. These matters I have no wish to overlook or minimise. I appreciate also Mr Littman's argument that no indication has been given that Her Majesty's Government would be embarrassed by the court entering upon these issues. But, the ultimate question what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, upon an appreciation of the nature and limits of the judicial function. This has clearly received the consideration of the United States courts. When the judicial approach to an identical problem between the same parties has been spelt out with such articulation in a country, one not only so closely akin to ours in legal approach, the fabric of whose legal doctrine in this area is so closely interwoven with ours, but that to which all the parties before us belong, spelt out moreover in convincing language and reasoning, we should be unwise not to take the benefit of it."
This led on pp 937-938 to Lord Wilberforce's summary of the complex inter-state issues and to his conclusion, based on a principle of judicial abstention and non-justiciability, set out in para 42 above.
"cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation - often, but not invariably, arising in cases of confiscation of property."
He said that Mr Littman (counsel for Dr Hammer and Occidental) had given the House
"a valuable analysis of such cases ..., suggesting that these are cases within the area of the conflict of laws, concerned essentially with the choice of the proper law to be applied."
"It is one thing to assert that effect will not be given, to a foreign municipal law or executive act if it is contrary to public policy, or to international law (cf In re Helbert Wagg & Co Ltd's Claim [1956] Ch 323) and quite another to claim that the courts may examine the validity, under international law, or some doctrine of public policy, of an act or acts operating in the area of transactions between states."
and, as to the second, that
"The second argument seems to me to be no more valid. To attack the decree of 1969/70 extending Sharjah's territorial waters, ie its territory, upon the ground that the decree is extra-territorial seems to me to be circular or at least question begging."
There is here, in the reference to an "executive act", a possible passing reference, though no more, to the second type of foreign act of state. Lord Wilberforce did not regard this as covering the circumstances before him, because he went on to make clear that he did "not regard the case against justiciability of the instant dispute as validated by the rule [ie the rule governing the second type of foreign act of state] itself" and that any conclusion in favour of non-justiciability would have to be "upon some wider principle": p 931F. A further reference to the first and/or second types of foreign act of state appears in Lord Wilberforce's reference at p 934B to Sabbatino as a case of "'act of state' in the normal meaning, viz, action taken by a foreign sovereign state within its own territory". In Sabbatino, the United States courts had declined to determine whether the Cuban expropriation decree complied with the requirements of Cuban law: 376 US 398 (1964); 416 FN 17.
60. What is clear, therefore, is that Lord Wilberforce's reliance on reasoning in the United States authorities of Underhill v Hernandez, Oetjen and Sabbatino - as well as on the judgments delivered in the United States in parallel litigation between Buttes Gas and Occidental - led on his analysis not to an expanded principle of the second type I have identified; rather, it led to a principle of self-restraint or abstention "in suitable cases" (p 934C), which he described as "inherent in the very nature of the judicial process" and which constitutes the third type of foreign act of state. Similarly, Lord Wilberforce treated the older English cases of Blad v Bamfield (1674) 3 Swans 603-607 (App) 607 and Duke of Brunswick v King of Hanover (1844) 6 Beav 1; (1848) 2 HL Cas 1 as precursors of these United States cases. Indeed, he referred (p 933C-D) to Underhill v Hernandez (933C-D) as following the Duke of Brunswick's case, which, although not mentioned expressly by Fuller CJ, had been referred to in the Circuit Court of Appeals and certainly finds echoes in Fuller CJ's language in Underhill v Hernandez.
"the very manner of the defence [to the injunction] offered by [Bamfield and others] had made it directly a case of state; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public; for every misinterpretation of an article may be the unhappy occasion of a war; and if it had been known at Board that this would have been the main part of their case, doubtless the Council would not have suffered it to depend in Westminster Hall."
On that basis, Lord Nottingham decreed a permanent stay since it would be "monstrous and absurd" to
"send it to a trial at law, where either the court must pretend to judge of the validity of the king's letters patent in Denmark, or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd."
The House in Buttes Gas understandably saw this reasoning as an early precursor of a concept of non-justiciability. The actual decision can also be seen as an example of the second category of case identified in Shergill v Khaira [2015] AC 359, paras 41-42, in so far as Bamfield was attempting to derive private rights from an unincorporated treaty (see para 43(ii) above), and perhaps also as an example of the second type of act of state, if and so far as Bamfield was attempting to challenge "the validity of the king's letters patent in Denmark", granted in favour of Blad "for the sole trade of Iceland".
"It is true, the bill states that the instrument was contrary to the laws of Hanover and Brunswick, but, notwithstanding that it is so stated, still if it is a sovereign act, then, whether it be according to law or not according to law, we cannot inquire into it."
Lord Wilberforce thus derived from his examination of the Duke of Brunswick's case "support, no doubt by reference to the issue in dispute, for a principle of non-justiciability by the English courts of a certain class of sovereign acts" (p 933C). Lord Wilberforce viewed the relevant acts in that case as having been "performed within the territory of the sovereign concerned" (p 933B). But he did not suggest that this limited the principle of self-restraint, and the decision in Buttes Gas itself indicates that there can be no such absolute limitation. Lord Wilberforce's view as to where the acts were committed is in fact questionable. The plea was that the King of Hanover had, after succeeding HM William IV in 1837, taken possession of the Duke's personal property "in Brunswick and elsewhere" (p 5). Further, the instrument directly challenged by the claim, under which the King of Hanover claimed to be the lawful guardian of the Duke's personal property, was signed by HM William IV at St James's on 6 February 1833 and by the claimant's brother in Brunswick on 14 March 1833. The Lord Chancellor also observed (pp 19-21) that the challenge to that instrument was itself a challenge to "acts of persons claiming to have the right so to act by virtue of their sovereign authority". That referred to authority claimed under a decree of the Germanic Diet of Confederation, which was established by the Treaty of Vienna 1815 and sat in Frankfurt under Austrian presidency. The Diet had on 2 September 1830 purported to depose the Duke and declare that the throne of Brunswick had passed to his brother. As the Lord Chancellor said, "whether the constitution of Germany authorized it or not, is a question we have no power to interfere with, or to inquire into". The case can be seen on this basis as falling, like Buttes Gas itself, into the first category in Shergill v Khaira, ie as non-justiciable or requiring judicial abstention.
64. The appellants can gain no assistance from the first type of act of state. That depends upon establishing the legality of what occurred in the relevant foreign state. They do however invoke the second type of foreign act of state, or the generalised doctrine which they submit underlies this and the third type of foreign act of state. Leaving aside for the moment any issue as to whether the second type of act of state or any such generalised doctrine can cover acts against the person or acts committed outside the jurisdiction of the state committing them, it is convenient to deal at the outset with the respondents' submission that the respondents are not inviting the English court to adjudicate upon the validity of the conduct of the foreign states allegedly involved, but are only asking the court to find that such conduct occurred as a matter of fact. The respondents rely in this context on the United States authorities of Kirkpatrick and Sharon v Time, Inc 599 F Supp 538, 546 (SDNY 1984). But in my view validity in the Kirkpatrick sense encompasses legality. To that extent, I do not agree with one part of the reasoning of Perram J in The Federal Court of Australia in Habib v Commonwealth of Australia [2010] FCAFC 12; (2010) 265 ALR 50, at para 44. On these appeals the respondents' cases on the issues before the Supreme Court depend upon showing illegal conduct by the various States allegedly implicated as well as by the appellants as accomplices.
"A governmental act affecting any private proprietary right in any movable or immovable thing will be recognised as valid and effective in England if the act was valid by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise."
The qualifications "if the act was valid by the law of the country" and the final phrase "and not otherwise" confine the scope of rule 137 to the first type of foreign act of state. They might, by themselves, be read as inconsistent with the existence of any second type of foreign act of state. But rule 3 in Dicey, Morris and Collins is in terms which it is possible to read widely enough to cover the second type of foreign act of state. It reads:
"English courts have no jurisdiction to entertain an action:
(1) For the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state; or
(2) founded upon an act of state."
The commentary to rule 3 in Dicey, Morris and Collins approves the suggestion made by Lord Keith of Avonholm in Government of India v Taylor [1955] AC 491, 511, that enforcement of claims of the sort identified would amount to an extension of the sovereign power which imposed the taxes or law, or as an assertion of sovereign authority by one state within the territory of another. On that basis, sub-rule (2) may be seen inversely as a recognition of the sovereign authority of a foreign state within its own foreign jurisdiction. But a potential problem about such a reading is that it equates sovereignty with executive activity. In states subject to the rule of law, a state's sovereignty may be manifest through its legislative, executive or judicial branches acting within their respective spheres. Any excess of executive power will or may be expected to be corrected by the judicial arm. A rule of recognition which treats any executive act by the government of a foreign state as valid, irrespective of its legality under the law of the foreign state (and logically, it would seem, irrespective of whether the seizure was being challenged before the domestic courts of the state in question), could mean ignoring, rather than giving effect to, the way in which a state's sovereignty is expressed. The position is different in successful revolutionary or totalitarian situations, where the acts in question will in practice never be challenged. It is probably unsurprising that the cases relied upon as showing the second kind of foreign act of state are typically concerned with revolutionary situations or totalitarian states of this kind.
"Thus the executive seizure of property by a foreign sovereign within its territory will not give rise to an action in tort in England, either on the basis of this general principle, or because the act was lawful by the law of the place where it was committed. ... Nor can a former owner challenge title to property acquired from a foreign government which had been confiscated within its own territory, again either on the basis of the general principle or on the basis of the rule that the validity of a confiscatory transfer of title depends on the lex situs."
In discussing these cases in Foreign Affairs in English Courts (1986) p 179, Dr Francis Mann also says - pertinently in my view - that
"it is clear in English law that the doctrine of act of state is limited to action taken by a foreign state within its own territory or, perhaps one should say, in respect of property situate in its territory." (italics added for emphasis)
In its judgment in Sabbatino, the United States Supreme Court laid some stress on the fact that it was limiting itself to a property context. It said at p 428:
"Therefore, rather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law."
The Court went on to underline what is special about property when addressing the suggested violation of customary international law at p 433:
"Another serious consequence of the exception pressed by respondents would be to render uncertain titles in foreign commerce, with the possible consequence of altering the flow of international trade. If the attitude of the United States courts were unclear, one buying expropriated goods would not know if he could safely import them into this country. Even were takings known to be invalid, one would have difficulty determining after goods had changed hands several times whether the particular articles in question were the product of an ineffective state act."
As I have already observed, the United States authorities of Hatch v Baez and Underhill v Hernandez, which might on their facts be taken to be authorities extending the second type of foreign act of state to acts affecting persons as well as property, were both cases which could and would now be seen as involving a straightforward defence of state immunity.
"In the context of worldwide trade, goods arrive daily in Germany from across the whole world for the purpose of further processing, onward sale or end use. Not a few come from states, which do not provide the legal protection which is among the fundamental principles of German law. It is demanding too much of the domestic jurisdiction to give it the task, in the case of a foreign act of state taking place abroad, of offering the legal protection which the foreign state is not ready to provide its own citizens, simply because a chain of sales leads through Germany. Conduct contrary to international law falls to be addressed in other ways, such as through political influence, through the conclusion of treaties between individual states and through the development of the protective legal system of international tribunals."
I note in parenthesis that the Hamburg Court recognised that, in certain situations, this principle might have to give way to considerations of ordre public, if the application of the foreign norm led to a result which was inconsistent with fundamental principles of German law (para 6). But it made clear that, for this to be the case, the subject matter would have to involve a substantial German connection, which did not exist in a case of Zimbabwean expropriation.
(i) In Société Cementos Rezola v Larrasquitu et Ētat espanol (Cour d'appel de Poitiers) [1938] Sirey Rec Gen iii, 68, the issue before the French courts was whether to recognise the requisitioning by the Republican Government of Spain of a vessel registered in Spain but evidently outside the Spanish jurisdiction at the time of her requisition. In accordance with the Spanish decree ordering the requisition, notice had been placed in the vessel's register by the Spanish consul at Bordeaux. The French Court of Appeal accepted the requisition as effective, thereby, in effect, applying a rule whereby the transfer of merchant vessels depends not on their physical situs, but on the legal position under the law of their registry: compare Dicey, Morris & Collins, The Conflict of Laws (15th ed) para 22E-057 for a discussion of the common law position. It is worth noting that the Poitiers Court of Appeal referred to the requisitioning as an exercise of full sovereignty by the Spanish state "qui n'a porté aucune atteinte à l'ordre public de l'Ētat français". The inference is that there could be some circumstances in which a foreign act of state of this nature might be refused recognition, as being contrary to the public policy of the forum state.
(ii) This inference is supported by a decision of the Cour de cassation, Companie Algérienne de Transit et d'Affrètement Serres et Pilaire (la SATA) v Société Nationale des Transport Routiers (la SNTR) (10 mars 1979 (No de pourvoi: 77-13943), in which the Chambre commerciale refused to recognise "un acte de puissance public" of the State of Algeria, transferring the property of SATA to SNTR, because it constituted expropriation by a foreign state without payment of appropriate compensation ("une dépossession opérée par un Ētat étranger sans qu'une indemnité équitable ait été préalablement versée"). (For a sharp critique of this decision, advocating an approach to property cases similar in fact to the German, see a note by Paul Lagarde in Revue critique de droit international privé 1981, pp 527-525.)
(iii) Martin v Bank of Spain [1952] ILR 202 involved a refusal by the Bank of Spain as agent of the Spanish state to issue in Spain new notes in exchange for old notes which were no longer legal tender. In holding that the acts in question were, even apart from the principle of immunity, "public acts which are not subject to judicial control in France", the Cour de cassation was doing no more, at most, than recognise the second type of act of state, that is the right of a state to deal with property within its own jurisdiction.
(iv) Similarly, in Ēpoux Reynolds v Ministre des Affaires Ētrangères (1965) 47 ILR 53, the Tribunal de Grande Instance de la Seine was being asked by a building's former owners to adjudicate upon the validity of a confiscation of property by the Hungarian State, and its subsequent assignment to the French Legation in Hungary said to have taken place under an international agreement. Again, the confiscation falls directly within the second type of act of state. The court also said that the French courts were not competent to interpret the provisions of the international agreement (which it was said did not cover the assignment to the French Legation), but, in the light of the confiscation, the claimants can have had no sustainable rights in any event.
(v) Bank Indonesia v Senembah Maatschappij and Twentsche Bank (1959) 30 ILR 28 is another case regarding seizure by the Indonesian State in Indonesia of property which was then, apparently, put into the hand of Bank Indonesia acting in a private law capacity, not as a state organ. It was therefore within the second type of act of state. The case is also of particular interest for the Court of Appeal of Amsterdam's statement that "the Act of State doctrine relied on by the Bank Indonesia was not a generally accepted rule of international law, and did not apply when the relevant measures were in conflict with international law". On that basis, although the court said that "as a rule, a court will not, and should not, sit in judgment on the lawfulness of acts jure imperii performed by, or on behalf of, a foreign Government, this rule must be subject to an exception when the acts in question can be deemed to be in flagrant conflict with international law". This, the Court went on to hold, they were, because they were unmistakably discriminatory - and also because they were being used as a means to exert pressure in a political dispute over Netherlands New Guinea.
(vi) The Cour de cassation concluded in the case of Ramirez Sanchez Illich, alias Carlos (ECLI:FR:CCASS: 1995:CR06093) that Carlos's arrest in Khartoum by Sudan authorities with a view to his return to France for trial constituted an act of sovereignty and that domestic jurisdictions were incompetent to adjudicate upon the conditions under which such authorities had effected such arrest and handed Carlos over to French police in Khartoum to be transported back to France for trial without any arrest warrant or legal procedures. French civil law and common law therefore diverge in this area: see para 73(v) below.
Thus it can be said that, even in relation to property, the general picture is that French and Netherlands case law is not unqualified in accepting the validity of foreign acts of state.
(i) The second type of foreign act of state is, by definition, limited to sovereign or jure imperii acts, excluding in other words commercial or other private acts.
(ii) It has been held inapplicable to judicial acts, even though such acts can engage the state's responsibility in human rights or international law: Yukos v Rosneft, paras 73-91, citing Altimo (above). In Altimo, the Privy Council held (para 101) that:
"The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence."
On that basis, the Court of Appeal in Yukos v Rosneft held justiciable the issue whether judicial acts had been part of a "campaign waged by the Russian state for political reasons against the Yukos group and its former CEO" (para 29), where it was alleged that the courts were in a position of "systematic dependency on the dictates or interference of the domestic government" (para 90). Another possible explanation of these cases is, however, that they do not illustrate an exception from the second type of foreign act of state, but reflect the public policy exception to the recognition of foreign judicial acts which exists as a matter of conflicts of law in respect of the first type of foreign act of state: see para 37 above. In an English (or English law based) court, it is not surprising if public policy has a fairly expansive role in relation to foreign judicial acts. If one believes in justice, it is on the basis that all courts will or should subscribe to and exhibit similar standards of independence, objectivity and due process to those with which English courts identify. Given the evidence, a domestic court should be able to detect, and it would be surprising if it were obliged to overlook, accept or endorse, any significant shortfall in this respect.
(iii) The English courts are entitled to determine whether a foreign law is legal, for example under the local constitution; the foreign law will not be regarded as an act of state which cannot be challenged: Buck v Attorney General [1965] Ch 745, 770; Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773, para 74, per Arden LJ and para 189 per Lord Dyson MR; and see McLachlan, Foreign Relations Law, para 12-129; Dicey, Morris and Collins para 5-048.
(iv) Acts of officials granting or registering intellectual property rights have been held to be outside any doctrine of foreign act of state: Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2012] 1 AC 208.
(v) (a) In a criminal law context, English courts have had no hesitation about investigating and adjudicating upon the wrongful detention and rendition of individuals by foreign states in conjunction with United Kingdom authorities, in breach of a foreign law. In R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, the House held that kidnapping and abduction from South Africa of a person wanted for trial in England "in violations of international law and of the laws of another state" [ie South Africa] required recognition by the court in order to uphold the rule of law, with the result that the trial was stayed: see eg pages 62G, 67G and 73G. In R v Mullen [2000] QB 520, the Court of Appeal Criminal Division followed Ex p Bennett, setting aside the conviction of Mr Mullen, who had been deported from Zimbabwe to the United Kingdom as a result of a plan concocted between the United Kingdom and Zimbabwean authorities which involved breaching Zimbabwean extradition law. The Australian High Court decision in Moti v The Queen [2011] HCA 50, 245 CLR 456, discussed in para 82 below, has adopted the same approach after expressly considering and rejecting a Crown submission that foreign act of state precluded its adoption.
(b) Lord Sumption suggests (para 246) that Mullen, Bennett and Moti can all be explained on the basis that "any unlawfulness in the conduct of the foreign officials was incidental", that "the unlawfulness of the Australian officials' conduct was enough to justify staying the proceedings against Mr Moti" and that "the unlawfulness of the acts of their foreign collaborators was ... irrelevant". This in my opinion misreads all three cases; it inverts their significance. It was an essential step in the reasoning of each that the foreign officials (the primary actors in the illegal deportation in each case) had acted illegally. Far from being "incidental" or "irrelevant", the foreign officials' illegal conduct was in each case the key to the scheme of deportation. Without it, there would have been no illegal deportation at all. If the second type of foreign act of state had any application to personal wrongs of this nature, investigation and condemnation of the British authorities' conduct should have been precluded on the grounds that the direct actors in the illegality were foreign state officials, acting within their own territory, whose conduct was immune from investigation or criticism. In neither of the first two cases did anyone conceive of such an argument, and in the third, where it was raised, it was categorically, and rightly, dismissed. In so far as the present appeals relate to alleged complicity by British officials in illegal conduct by foreign officials within their own foreign jurisdictions, they present exact parallels in a civil context to these three deportation cases in a criminal context. It is no answer to this that, on a hypothesis contrary to the actual facts, the British or Australian authorities in these cases might (possibly) have been able to kidnap the wanted individuals from the foreign jurisdictions by themselves without the relevant local authorities' involvement. The doctrine of foreign act of state must depend on the actual facts, not on inapplicable counter-factuals. Indeed, if counter-factuals of this nature were relevant at all, they could presumably also be advanced in the current cases of Belhaj and Rahmatullah.
All this suggests caution in today's world about recognising the application of the second type of foreign act of state in areas where it has hitherto had no discernible domestic role.
"No rendition to torture case against US officials has, to the knowledge of the NGO Interveners, ever succeeded in a US court since September 11. Such actions are commonly blocked by various other US doctrines to which the appellants refer in their written case, in particular the 'political questions doctrine' and the 'state secrets doctrine'. As Professor Jonathan Hafetz has observed [in Recapitualising Federal Courts in the War on Terror, St Louis University Law Journal, Vol 56, 2012, p 21]:
... Federal courts have repeatedly dismissed actions by noncitizens against US officials seeking damages for arbitrary detention, torture, and other mistreatments. The dismissals, which rest on various grounds, including the 'state secrets' privilege, Biven's 'special factors', and qualified immunity, typically cite the twin concerns of separation of powers and limited judicial capacity as reasons for denying litigants a federal forum. The decisions portray federal courts as unable to provide remedies for even the most egregious rights violations ..."
81. The Court of Appeal in Belhaj found (in paras 96-102) assistance and support for its conclusion in the Federal Court of Australia decision in Habib v Commonwealth [2010] FCAFC 12; (2010) 265 ALR 50. It saw this, rightly in my view, as based on two distinct lines of reasoning. One, not directly relevant here, was the Australian constitutional position, which was viewed as requiring a remedy. The other was a more general conclusion regarding the scope of the second type of foreign act of state. The Federal Court treated this type as potentially applicable to claims relating to person as well as property. The claim was that Australian officials had aided, abetted and counselled torture of an Australian citizen by foreign officials while he was detained in Pakistan, Egypt and Afghanistan and in Guantanamo Bay. Contrary to the appellants' case, the relevant facts were neither clear nor accepted: see eg paras 58-67 per Perram J and para 110 per Jagot J. Black CJ saw public policy as an answer to any defence of act of state in relation to the claim (paras 7 and 13). Perram J saw the defence of foreign act of state being advanced as a rule of validity (not a rule of abstention or deference), and therefore as one on which "a human rights exception might be hung": see paras 43 and 45. Jagot J accepted that there was a public policy exception, and explicitly rejected any distinction between known and alleged violations, as without support in the authorities or in principle. She added that there were legal parameters in international and Australian law enabling judicial determination of the claims and meaning that this was no "judicial no-man's land": paras 107-110. The case is also of particular interest, because the claim was, as it is in the issues now before the Supreme Court, for secondary responsibility arising from alleged aid, abetting or counselling by Commonwealth officials in relation to conduct allegedly committed by foreign officials.
"Here, the question of the lawfulness of the appellant's removal from Solomon Islands, although effected by the Solomon Islands Government, was 'a preliminary' to the decision whether a stay should be granted. The primary judge was not right to conclude that '[i]t is not for this court to express an opinion on these decisions made by the Solomon Islands government'."
The appellants submit that this decision falls within the Kirkpatrick exception, as a case where all that mattered was the facts about what happened in the Solomon Islands, not whether these facts involved illegality. I reject that analysis, basically for reasons already given in para 73(v)(b) above. It was critical to establish that there was illegality under Solomon Islands law, with which the Australian High Commissioner had at the least gone along. In the present appeals, the issue whether there was illegal conduct by foreign state officials under their own laws is also a preliminary to a decision on whether the appellants arranged, assisted or encouraged or otherwise connived or joined in such conduct, but that is no reason for an English court to refuse to determine it.
93. In this connection, Leggatt J also treated the previous Court of Appeal decision in R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872 as falling within the second sub-category, and explained the Court of Appeal's refusal there to grant relief on the basis that no claim of right was involved. The claimant in Noor Khan was seeking no more than a public "declaration that a GCHQ officer or other Crown agent who passes 'locational intelligence' to an agent of the US may commit an offence of 'encouraging or assisting in a crime' under sections 44-46 of the Serious Crime Act 2007" (para 150). The claimant in Noor Khan was the son of a tribal elder killed in a US drone strike in Pakistan pursuant, allegedly, to locational intelligence supplied by GCHQ to the CIA. He maintained that there could be no defence of combat immunity to a charge of murder: GCHQ and CIA officials were not members of the US and UK armed forces and could not be combatants, there was no armed conflict in Pakistan and Al-Qaeda was too incoherent and sporadic in its actions for it to be shown that there was an armed conflict even in Afghanistan. In any event, if there was an armed conflict, it was non-international in nature. Leggatt J explained this case as one where the claimant was "not claiming that he had any legal right which the defendant had violated. The relief sought was, in effect, an advisory opinion on the criminal law." The case, he said, fell therefore into the second sub-category identified in Shergill v Khaira (para 43 above).
"The proposition, even if it is right, that a person may be guilty of secondary liability for murder under sections 44-46, although the principal could not, is no answer to the fundamental objection to the grant of a declaration: that it involves, and would be regarded 'around the world' ... as 'an exorbitant arrogation of adjudicative power' in relation to the legality and acceptability of another sovereign power. ... Even if the argument focused on the status of the attacks in North Waziristan (international armed conflict, armed conflict not of an international nature, pre-emptive self-defence) for the purposes of considering whether the United Kingdom employee might have a defence of combatant immunity, it would give the impression that this court was presuming to judge the activities of the United States."
Lord Dyson went on to say (para 37):
"In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country."
95. In substance, therefore, Lord Dyson saw the issue as one of the lawfulness of the use of drones and as non-justiciable, because its resolution would depend upon determining whether there was an armed conflict in Pakistan and/or Afghanistan, whether any such conflict was international or non-international in nature and what rights of action or self-defence existed. All those are issues on which the policy and judgment of the executive and armed forces might be expected to prevail: compare the Court of Appeal Criminal Division's provisional view to that effect in R v Gul (Mohammed) [2012] 1 WLR 3432, paras 20 to 23. (The decision in Gul was upheld on grounds not referring to this point at [2014] UKSC 64; [2014] AC 1260). It is true that the common law develops and responds to changing times and attitudes, and that a sharp division between the domestic and international legal sphere is less visible today than in the past. The case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 is an example of this development. I also note encouragement given by distinguished international lawyers in article 2 of the Institut de Droit international's resolution The Activities of National Judges and the International Relations of their State (Milan, 1993), to the effect that:
"National courts, when called upon to adjudicate a question relating to the exercise of political power, should not decline competence on the basis of the political nature of the question if such exercise of power is subject to a rule of international law."
Some matters are however better addressed at the international legal level, rather than in domestic courts. In civil as well as common law, it appears unsurprising under present conditions that domestic courts should treat acts of government consisting of an act of war or of alleged self-defence at the international level as non-justiciable and should abstain from adjudicating upon them: see the concurrently issued judgment in the cases of Rahmatullah and Serdar Mohammed to which reference is made in paras 6 and 8 above; see also para 71 above and the remarks of the majority and of Judge Costa in his concurring judgment in Markovic v Italy 44 EHRR 52, paras 113 -116. Whether, at least apart from the special statutory provisions in Noor Khan, there might also have been issues of non-justiciability under the principle of Crown act of state does not require further examination here.
"No free-man shall be taken, or imprisoned, or dispossessed, of his ... Liberties, ..., or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. To none will we sell, to none will we deny, to none will we delay right or justice."
Further, torture has long been regarded as abhorrent by English law: see eg A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, para 11, per Lord Bingham, and individuals are unquestionably entitled to be free of deliberate physical mistreatment while in the custody of state authorities.
99. Sovereign states who without justification and without permitting access to justice detain or mistreat individuals in the course or in relation to their conduct of foreign relations or affairs have sovereign immunity in foreign domestic courts. But I see no reason why English law should refrain from scrutinising their conduct in the course of adjudicating upon claims against other parties involved who enjoy no such immunity here, where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good measure, torture or persistent ill-treatment of an individual. This is consistent with the reasoning in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, where, in the context of a claim judicially to review the Secretary of State for alleged inaction in respect of the plight of a British citizen detained in Guantanamo, the Court of Appeal said that "where fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state" (para 53) and that it was not "possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a 'legal black-hole'" (para 64).
(i) The analogy of jus cogens would suggest that a domestic court would be able to adjudicate upon an allegation that its national government connived in a serious violation of the claimant's rights by a foreign government, but would be required to abstain from adjudicating upon a less serious violation, such as "mere" unlawful detention or cruel or inhuman treatment not amounting to torture.
(ii) Jus cogens is a developing concept notoriously difficult to define, and capable of giving rise to considerable argument. Oppenheim's International Law (9th ed) (1995) Vol 1, para 2 said: "Such a category of rules of ius cogens is a comparatively recent development and there is no general agreement as to which rules have this character", citing a wealth of authority in a footnote. Brownlie's Principles of International Law (8th ed) (2000) notes that "during the 1960s scholarly opinion came to support the view that there can exist overriding norms of international law, referred to as peremptory norms ( ius cogens)", identified in article 53 of the Vienna Convention on the Law of Treaties as comprising any "norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". Brownlie's Principles says that "The least controversial of this class are the prohibition of the use of force in article 2(4) of the [United Nations] charter, of genocide, of crimes against humanity (including systematic forms of racial discrimination), and the rules prohibiting trade in slaves". It goes on to cite the International Law Commission's synopsis in Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (A/CN.4/L.702, 18 July 2006), which lists "the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self-determination". Similarly, Harris and Sivakumaran's Cases and Materials on International Law (8th ed) (2015), para 2-033 footnote 68, gives the prohibitions on the use of armed force, torture and genocide as prime examples of jus cogens rules. The Report of the United Nations Working Group on Arbitrary Detention, A/HRC/22/44, 24 December 2012), to which Lord Sumption refers in paras 269-271 is clearly a most valuable and important soft law pronouncement, which is likely to influence the development of generally accepted and recognised norms. But the scope for argument about the precise parameters of even such norms as the Working Group suggests in this area is evident from a full reading of para 38, reading:
"The Working Group regards cases of deprivation of liberty as arbitrary under customary international law in cases where:
(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty;
(b) the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights;
(c) The total or partial non-observance of the international norms relating to the right to a fair trial established in the Universal Declaration of Human Rights and in the relevant international instruments is of such gravity as to give the deprivation of liberty an arbitrary character;
(d) Asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review of remedy;
(e) The deprivation of liberty constitutes a violation of the international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; disability or other status, and which aims towards or can result in ignoring the equality of human rights."
(iii) If violation of a jus cogens were a primary test of whether a domestic court could adjudicate upon an issue which was otherwise non-justiciable and upon which it would otherwise have to abstain from adjudicating, central areas of abstention identified by Lord Sumption would become potentially amenable to adjudication. The prohibition on the use of armed force and on aggression are core examples of jus cogens. Yet these are, rightly as would be my present view, treated by Lord Sumption himself as giving rise to core examples of issues upon which domestic courts should refrain from adjudicating: see eg Lord Sumption's paras 223-224, with references to Noor Khan; and see paras 93-95 above.
(iv) If, as Lord Sumption indicates is his view (para 257), not every violation of a peremptory norm of international law is an exception to the foreign act of state doctrine, then it is not clear how one determines when or why ius cogens is an appropriate basis for any exception in any particular case.
(v) Ultimately, in an area of judicial abstention, a case-by-case approach, along lines to which Lord Wilberforce referred, is in my opinion always likely to be necessary. Nothing I have said should be taken to mean that the existence of relevant jus cogens principles may not be a stimulus to considering whether judicial abstention is really called for in a particular situation. But the doctrine of abstention rests on underlying principles relating to the role of a domestic judge and the existence of alternative means of redress at an international level, which make it difficult to tie too closely to particular rules of international law, however basic and binding at that level.
109. Another point which can strictly remain undecided is whether article 6 of the Convention rights scheduled to the Human Rights Act 1998 is engaged by and renders impermissible in the present circumstances any reliance by the appellants on either state immunity or foreign act of state. As regards state immunity, Mr Belhaj and Mrs Boudchar would have faced the initial difficulty of trying to persuade the Supreme Court - in the light of the European Court of Human Rights judgments in Al-Adsani v United Kingdom (2001) 34 EHRR 11 and Jones v United Kingdom (2014) 59 EHRR 1 - to overrule Holland v Lampen-Wolfe [2000] 1 WLR 1573, in which a majority of the House of Lords held that article 6 is not even engaged by a plea of state immunity: see also Jones v Saudi Arabia at paras 14 and 64 per Lord Bingham and Lord Hoffmann.
110. As regards foreign act of state, the question would have been whether for similar reasons article 6 was or was not engaged. Foreign act of state, on the other hand, operates, even under the case law of the European Court of Human Rights, as a substantive bar to liability or adjudication: see Roche v United Kingdom 42 EHRR 30; Markovic v Italy 44 EHRR 52). On this basis, foreign act of state, even if it had been otherwise applicable, would not engage article 6.
LORD NEUBERGER: (with whom Lord Wilson agrees)
Introductory
117. The doctrine of foreign act of state ("the Doctrine") raises more troubling issues.
The nature of the Doctrine
The rules identified in the cases
123. The third rule has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it. Thus, the courts of this country will not interpret or question dealings between sovereign states; "[o]bvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory" - per Lord Pearson in Nissan v Attorney General [1970] AC 179, 237. Nissan was a case concerned with Crown act of state, which is, of course, a different doctrine and is considered in Rahmatullah v Ministry of Defence 2017 UKSC 1, but the remark is none the less equally apposite to the foreign act of state doctrine. Similarly, the courts of this country will not, as a matter of judicial policy, determine the legality of acts of a foreign government in the conduct of foreign affairs. It is also part of this third rule that international treaties and conventions, which have not become incorporated into domestic law by the legislature, cannot be the source of domestic rights or duties and will not be interpreted by our courts. This third rule is justified on the ground that domestic courts should not normally determine issues which are only really appropriate for diplomatic or similar channels (see Shergill v Khaira [2015] AC 359, paras 40 and 42).
124. A possible fourth rule was described by Rix LJ in a judgment on behalf of the Court of Appeal in Yukos Capital SARL v OJSC Rosneft Oil Co (No 2) [2014] QB 458, para 65, as being that "the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country: but that this doctrine only arises as a result of a communication from our own Foreign Office".
The cases where the rules have been applied
125. The first rule appears to me to be well established and supported by a number of cases, at least in relation to property. It was applied in Duke of Brunswick v King of Hanover (1848) 2 HLC 1, where Lord Cottenham LC rejected a challenge to the validity of a Hanoverian bill deposing and replacing the Duke of Brunswick, on the ground that "a foreign sovereign ... cannot be made responsible here for an act done in his sovereign character in his own country". It was also relied on in Carr v Fracis Times & Co [1902] AC 176, where seizure of ammunition within Muscat territorial waters was effected by a British officer pursuant to a proclamation issued by the Sultan of Muscat, and the validity of the proclamation could not be challenged as, per Lord Halsbury LC at p 179, "the Sultan's authority there [sc Muscat] is supreme, and what he says is law for the purpose of governing all acts which take place within his territory".
127. The second rule also has significant judicial support, but again only in relation to property. Thus, it appears to have been applied in Blad v Bamfield (1673) 3 Swans 604, in the light of Lord Nottingham's point that "the validity of the King's letters patent in Denmark" was non-justiciable in English courts (emphasis added). Another example is Dobree v Napier (1836) 2 Bing NC 781, where Tindal CJ stated that "no one can dispute the right of the Queen of Portugal to appoint in her own dominions the defendant ... as her officer ... to seize a vessel which is afterwards condemned as a prize" (emphasis added). The second rule was also relied on in Luther v Sagor (in the passages in the judgments of Warrington and Bankes LJJ cited above), and in Princess Paley Olga (see Scrutton LJ's third reason at pp 722-724, reflected in the judgments of Sankey and Russell LJJ at pp 726-730 and 736 respectively).
128. The third rule has been applied in a number of cases, again in relation to property. Examples of the third rule involving transactions between states include Blad in the light of Lord Nottingham's view that a trial about "the exposition and meaning of the articles of peace" between two states would be "monstrous and absurd". It also was applied in Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, which was expressly treated as "a case of mutual treaty between persons acting as states independent of each other" so that it "consequently ... not a subject of private, municipal jurisdiction". The third rule is also apparent from Lord Kingsdown's dictum in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22 (a decision based on Crown act of state) that "[t]he transactions of independent States between each other are governed by other laws than those which Municipal Courts administer". That point was repeated by Lord Halsbury LC in Cook v Sprigg [1899] AC 572.
129. Most of the issues held to be such that the court "would not adjudicate upon" them in Buttes Gas by Lord Wilberforce at pp 937-938 seem to me to be examples of the third rule - eg "what was the boundary of the continental shelf between (i) Sharjah and UAQ, (ii) Abu Musa and UAQ, (iii) Iran and both Emirates". As the Court of Appeal said in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 287, "at the heart of the dispute in that case was a boundary dispute between states which made it impossible to say what the territorial limitations of those states were". And, as it was put in this Court in Shergill, para 40, "the dispute arose out of the way in which the four states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force".
130. A more recent example of the application of the third rule, and this time in relation to injury to the person, is in R (Noor Khan) v Secretary of State for Foreign Affairs [2014] 1 WLR 872, where the Court of Appeal refused the applicant permission to seek judicial review of the provision of information by the UK intelligence services to the US government to assist it in targeting drone strikes in Pakistan. The argument was that the provision of information for this purpose was "unlawful", as it involved "requiring GCHQ officers to encourage and/or assist the commission of murder" (para 7). At para 29 Lord Dyson MR, giving the judgment of the Court of Appeal, said that "the court will also usually not sit in judgment on the acts of a sovereign state as a matter of discretion". In expressing that view, he was following some remarks of Simon Brown LJ in R (Campaign for Nuclear Disarmament) v Prime Minister of the United Kingdom 126 ILR 727, para 47(ii).
131. As to the supposed fourth rule, it derives support from the United States, whose jurisprudence was said by Lord Wilberforce to be helpful in Buttes Gas at pp 936-937. After initially suggesting in Oetjen v Central Leather Co 246 US 297, 303-304 (1918) that the Doctrine was based on "the highest considerations of international comity and expediency", the US Supreme Court preferred to explain it by reference to "the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder 'the conduct of foreign affairs'" - per Harlan J in Banco Nacional de Cuba v Sabbatino 376 US 398, 423 (1964), cited with apparent approval by Scalia J in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn, International 493 US 400, 406 (1990).
Decisions of foreign courts
The validity of the first rule in relation to property and property rights
135. There is no doubt but the first rule exists and is good law in relation to property (whether immovable, movable, or intellectual) situated within the territory of that state concerned. Sovereignty, which founds the basis of the Doctrine, "denotes the legal competence which a state enjoys in respect of its territory" ( Brownlie's Principles of Public International Law, 8th ed, (2012), p 211), and there is no more fundamental competence than the power to make laws. There is no doubt, however, that the first rule only applies to acts which take effect within the territory of the state concerned - see eg Peer International Corpn v Termidor Music Publishers Ltd [2004] Ch 212.
The validity of the second rule in relation to property and property rights
"A governmental act affecting any private proprietary right in any movable or immovable thing will be recognised as valid and effective in England if the act was valid by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise."
140. Further, it does not appear to me that the common law regards it as inappropriate for an English court to decide whether a foreign state's executive action infringed the law of that state, at least where that is not the purpose of the proceedings. Support for that view is to be found in the judgment of Diplock LJ in Buck v Attorney General [1965] Ch 745, 770, and of Arden and Elias LJJ in Al-Jedda v Secretary of State for Defence [2011] QB 773; [2010] EWCA Civ 758 at paras 74 and 189 respectively.
141. However, I am unconvinced that cases such as R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 assist on this point. In that case, the assumed facts (which subsequently turned out to be inaccurate: see 1995 SLT 510) were that the applicant had been kidnapped and brought to this country from South Africa in a joint exercise involving the police of the UK and of South Africa. Accordingly, even if the second rule would otherwise have applied, the courts of this country had jurisdiction to rule on the apparent unlawfulness of the applicant's treatment because of the public policy exception (considered in paras [153ff] below).
The validity of the third rule in relation to property and property rights
The validity of the fourth rule
149. However, apart from those types of cases, the fourth rule has no clear basis in any judicial decisions in this jurisdiction, although, at least on one reading, the Court of Appeal in R (Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872 seem to have accepted that it existed. If a member of the executive was to say formally to a court that the judicial determination of an issue raised in certain legal proceedings could embarrass the Government's relations with another state, I do not consider that the court could be bound to refuse to determine that issue. That would involve the executive dictating to the judiciary, which would be quite unacceptable at least in the absence of clear legislative sanction. However, there is a more powerful argument for saying that such a statement should be a factor which the court should be entitled to take into account when deciding whether to refuse to determine an issue. Some indirect support for such an argument is to be found in In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 [1978] AC 547, 616-617 and 639-640, and in Adams v Adams [1971] P 188, 198. Again, it is a point which does not have to be decided in this case, and was not argued. In fairness to the defendants, there was some evidence to support such an argument, but it was answered in some detail, and in any event it was, rightly in my view, not pressed on their behalf in relation to the application of the Doctrine in these two cases.
Characterisation of the Doctrine:
"the elementary proposition that it is part of the law of England, and of most nations, that in general every civilized state must be recognized as having power to legislate in respect of movables situate within that state and in respect of contracts governed by the law of that state, and that such legislation must be recognized by other states as valid and effectual to alter title to such movables." (Emphasis added)
To the extent that it exists, the second rule also seems to me to be a general principle, and, at least to some extent, it may be close to being a general principle of private international law.
Limits and exceptions to the Doctrine: Public Policy
153. It is well established that the first rule, namely that the effect of a foreign state's legislation within the territory of that state will not be questioned, is subject to an exception that such legislation will not be recognised if it is inconsistent with what are currently regarded as fundamental principles of public policy - see Oppenheimer v Cattermole [1976] AC 249, 277-278, per Lord Cross of Chelsea. This exception also applies where the legislation in question is a serious violation of international law - see Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 29, per Lord Nicholls of Birkenhead.
157. As to the third rule, dealings between states, (as well as the fourth rule - if it exists) it appears to me that in many types of case this exception may be applicable, but in some it may not. In the course of its judgment in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs and Secretary of State for the Home Department [2003] UKHRR 76, the Court of Appeal effectively suggested that the exception could be applied to the third rule. In paras 32 and 33, they said that "the English court will not adjudicate upon the legality of a foreign State's transactions in the sphere of international relations in the exercise of sovereign authority", but that this was subject to exceptions, as Oppenheimer and Kuwait Airways demonstrated. The Court was accordingly prepared to hold that the detention of a UK citizen in Guantanamo Bay "subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal" was unlawful, despite his detention being an act of state on the part of the US - see paras 64, 66 and 107. (It is fair to add that, although expressed as if it involved transactions in the field of international relations, it is arguable that the issue before the Court of Appeal in Abbasi was not in fact concerned with the third rule, but the second).
Limits and exceptions to the Doctrine: Injury to the person
158. None of the English cases discussed so far (save Noor Khan [2014] 1 WLR 872) involved alleged wrongs or acts in relation to the person, as opposed to alleged wrongs or acts in relation to property.
159. As to that, it appears to me to be a very powerful argument for saying that the first rule must apply equally to injuries to the person as it applies to the taking of property. The notion that English courts will respect a sovereign state's right to legislate as it sees fit in relation to the taking of property within its territory (subject always to the exception of legislation which conflicts with public policy) appears to me to be based on the principle that the law in a given territory should generally be treated as being that laid down by the legislature of that territory. In other words, it is either based on, or at least is close to, the choice of law, or proper law, principle which applies in private law conflict cases. That seems to derive support from what Lord Wilberforce said in Buttes Gas at p 931, and indeed from the reasoning of Lord Bingham in R (Al-Jedda) v Secretary of State for Defence (JUSTICE intervening) [2008] AC 332, paras 40-43, approving the reasoning and decision of the Court of Appeal at [2007] QB 621, paras 105-107.
161. Further, such recent authority as there is in this jurisdiction tends to support a limited interpretation of the second rule. In Lucasfilm Ltd v Ainsworth [2012] 1 AC 208, para 86, Lord Walker and Lord Collins said that "in England the foreign act of state doctrine has not been applied to any acts other than foreign legislation or governmental acts of officials such as requisition", and so refused to apply it to the grant of a patent. The notion that the second rule only applies to executive acts in relation to property within the jurisdiction of the state concerned is also supported by the editors of Dicey, Morris and Collins in the passage cited in para 139 above.
Limits and exceptions to the Doctrine: Territoriality
The application of these principles to these cases
Conclusion
LADY HALE AND LORD CLARKE:
LORD SUMPTION: (with whom Lord Hughes agrees)
Introduction
State Immunity
181. State immunity is a rule of customary international law which requires states to accord each other immunity from the jurisdiction of their domestic courts in respect of their sovereign acts (acts jure imperii). In Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Rep 99, the International Court of Justice held that the rule derived from the principle of the sovereign equality of states, which was "one of the fundamental principles of the international legal order" (para 57).
"... in considering under the 'restrictive' theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity."
185. The first, which does not arise in these appeals, is the case of a civil claim against an employee or other agent of a state in respect of acts which are attributable in international law to that state. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) [2007] 1 AC 270, the House of Lords held that the agent was entitled to immunity on the same basis as his principal. This is because so far as the agents of a state act in their public capacities, they are identified with the state in international law, so that references in the Act to a state "must be construed to include any individual representative of the state acting in that capacity": para 69 (Lord Hoffmann), cf para 10 (Lord Bingham).
187. The paradigm case of indirect impleader, and the earliest to be considered by the English courts, is an Admiralty action in rem against a state-owned ship. During the period when the United Kingdom applied the absolute doctrine of state immunity it was established that an action in rem against a state-owned ship was barred by state immunity. The principle, adapted to reflect the restricted doctrine of state immunity, is now embodied in section 10 of the State Immunity Act. The reason is that an action in rem is in reality an action against the ship's owner, although the owner is not named. Thus the action may be brought only if at the time when the cause of action arose the owner would have been liable in personam; in current practice it may be brought against a ship in respect of a liability arising in connection with another ship under the same ownership. A defendant who appears to the writ in rem thereby becomes liable in personam even if he would not otherwise have been. In The Parlement Belge (1880) 5 PD 197, Brett LJ, delivering the judgment of the court, said at pp 218-219:
"In a claim made in respect of a collision the property is not treated as the delinquent per se. Though the ship has been in collision and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to shew that the liability to compensate must be fixed not merely on the property but also on the owner through the property. If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court ... To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court."
Although the expression "indirect impleader" has passed into common usage, the truth is that proceedings in rem against property are a form of direct impleader, as Lord Wright pointed out in The Cristina [1938] AC 485, at p 505.
"No doubt, if a defendant, by whatever name he is called, can be identified with the sovereign state, his task is easy: he need prove no more in order to stay the action against him. But, as soon as it is proved that quoad the subject matter of the action the defendant is the agent of a sovereign state, that, in other words, the interests or property of the state are to be the subject of adjudication, the same result is reached."
Accordingly, he treated an action to assert a proprietary right in assets under the control of a state as a mode of impleading that state. Addressing an argument that Pakistan held the money in trust for the Nizam or as money had and received to his use, he added at p 397
"These are matters which directly concern the principal on whose behalf Rahimtoola received the money. They cannot be determined without impleading him. Therefore they cannot be determined at all."
This principle is now implicitly reflected in section 6(4) of the State Immunity Act, which provides that a court may entertain proceedings against a person other than a state relating to property in the possession or control of a state, or in which a state claims an interest, "if the state would not have been immune had the proceedings been brought against it."
"In the present case, Albania's legal interests would not only be affected by a decision, but would form the very subject matter of the decision. ... It is true that, under article 59 of the Statute, the decision of the court in a given case only binds the parties to it and in respect of that particular case. This rule, however, rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot, without the consent of that third state, give a decision on that issue binding upon any state, either the third state, or any of the parties before it."
East Timor concerned a claim by Portugal that Australia had not been entitled to conclude a treaty with Indonesia relating to the exploitation of certain natural resources of East Timor, a Portuguese territory which had been occupied by Indonesia since 1975. Indonesia was not a party. The Court applied the Monetary Gold principle. It declined to entertain the dispute because it could not do so without adjudicating in the absence of Indonesia on the lawfulness of its occupation and its right to make treaties concerning the natural resources of East Timor.
194. Turning to the appellants' second argument, the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) is an attempt to codify the international law of state immunity. It was drafted by the International Law Commission of the United Nations between 1977 and 2004. The final document was adopted by the General Assembly of the United Nations in December 2004. It will enter into force when 30 states have ratified it. As yet, however, it has been signed by only 31 states and ratified by only 19, not including the United Kingdom. Notwithstanding its uncertain status as a treaty, it has been regarded as an authoritative statement of customary international law. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, supra, at para 8, Lord Bingham endorsed the view expressed by Aikens J in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1 WLR 1420 (para 80) that the Convention "powerfully demonstrates international thinking." Article 1 of the Convention recites that it "applies to the immunity of a state and its property from the jurisdiction of the courts of another state."
195. Article 6 of the Immunities Convention provides:
"1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.
2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State:
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State."
Article 6(2)(b) incorporates the concept of indirect impleader. The appellants rely for their case on the breadth of the concluding words of paragraph (2)(b), and notably the extension of the concept beyond a state's property or rights, to its "interests" and "activities". There was an issue before us about how far these expressions can be said to represent the current consensus of nations. Certainly, comments in the course of the drafting suggest that some states considered the final words to be too broad. It is, however, unnecessary to resolve this question, because the scope of the final words of article 6(2)(b) are plainly limited by their context. Article 6(2)(b) is concerned only with cases where the proceedings seek to "affect" the property, rights, interests or activities of a state. It is difficult to envisage a case where this would be true, unless it related to property within the jurisdiction of the domestic forum in which the foreign state had an interest, especially in the context of a Convention which is expressly concerned only with the immunity of the state eo nomine and its property (see article 1). An examination of the travaux confirms this. The most illuminating document is the International Law Commission's report to the General Assembly of 1991, which includes a commentary on article 6: see Yearbook of the International Law Commission, 1991, ii(2), 23-25. This describes the genesis of article 6(2)(b) in domestic court decisions about state-owned property. It records that the word "affect" was used in order to avoid appearing to create too loose a relationship between the proceedings and their consequences. And the discussion of its meaning relates wholly to "actions involving seizure or attachment of public properties or properties belonging to a foreign state or in its possession or control": see paras 11-13 of the commentary under article 6.
Act of state: foundations
198. In Nissan v Attorney General [1970] AC 179, 211-212, Lord Reid observed:
"I think that a good deal of the trouble has been caused by using the loose phrase 'act of state' without making clear what is meant. Sometimes it seems to be used to denote any act of sovereign power or of high policy or any act done in the execution of a treaty. That is a possible definition, but then it must be observed that there are many such acts which can be the subject of an action in court if they infringe the rights of British subjects. Sometimes it seems to be used to denote acts which cannot be made the subject of inquiry in a British court. But that does not tell us how to distinguish such acts: it is only a name for a class which has still to be defined."
The first task of a court dealing with a contention that the act of state doctrine applies is to clarify what is meant by an act of state, and what legal consequences follow from this categorisation.
202. In England, the origin of the foreign act of state doctrine is commonly thought to be the decision of Lord Chancellor Nottingham in Blad v Bamfield (1673) 3 Swan 603-604, although this view turns more on his expansive turns of phrase than on anything that he actually decided. The dispute arose out of the volatile relations between England and Denmark in the second half of the 17th century. Peter Blad appears to have been the holder of a patent of monopoly from the King of Denmark to trade in Iceland, then a Danish possession. Bamfield was an Englishman whose property was seized on the high seas in 1668 by the authority of the Danish Crown and forfeited by the Danish courts, on the ground that he had been fishing off Iceland in breach of the monopoly. Some years later, Blad made the mistake of visiting England. Bamfield sued him at law, contending that the monopoly was illegal and invalid since it was contrary to a right to trade which had in practice been recognised by Denmark for 50 years before the seizure. Blad contended that he could not be liable because the seizure was an act of state. He initially complained to the Privy Council on the ground that as an act of state it was susceptible of relief only by diplomatic means. Lord Nottingham, who was sitting on the Council, "stood up and said this was not a question of state, but of private injury," and suggested that the matter should properly be brought before the Court of Chancery. But when the case came before him in chancery, Lord Nottingham changed his mind. This was because Bamfield was now contending that reliance on the Danish letters patent was precluded by the terms of the Anglo-Danish commercial treaty of 1670. This, he said, made all the difference:
"... it is very true that this cause was dismissed from the council board being not looked on there as a case of state, because for aught appeared to them, it might be a private injury, and unwarrantable, and so fit to be left to a legal discussion. But now the very manner of the defence offered by the defendant had made it directly a case of state; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public; for every misinterpretation of an article may be the unhappy occasion of a war."
Nottingham restrained Bamfield's action at law on the ground that
"to send it to a trial at law, where either the court must pretend to judge of the validity of the King's letters patent in Denmark or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd."
What barred Bamfield's case was his reliance on a treaty as invalidating a legal instrument of the Danish Crown relating to commercial operations in a Danish possession. In a later age it would have been held that a treaty operated only on the plane of international law, and could not give rise to private rights in a citizen. But Lord Nottingham's concern was a different one. He was simply expressing the view, which was still commonly expressed long after his day, that a domestic court was incompetent to construe a treaty.
"It is a case of mutual treaty between persons acting in that instance as states independent of each other; and the circumstance, that the East India Company are mere subjects with relation to this country, has nothing to do with that. That treaty was entered into with them, not as subjects, but as a neighbouring independent state, and is the same, as if it was a treaty between two sovereigns; and consequently is not a subject of private, municipal, jurisdiction."
"... no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize; or can deny, that the relation of lord and servant, de facto, subsists between the queen and the defendant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country ... For as we hold that the authority of the Queen of Portugal to be a justification of the seizure 'as prize', there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second." (pp 796-798)
The decision on this last point was approved by the House of Lords in Carr v Fracis Times & Co [1902] AC 176. Lord Halsbury LC analysed the case as follows, at pp 179-180:
"There, it was an act of state done by command of the Portuguese Crown and done by an English subject. It was an a fortiori case; the act done by the English subject was an act which he was by English law prohibited from doing; to the plea that it was done by the authority of the Portuguese Crown, there was a replication that he was forbidden by the Foreign Enlistment Act to take that part in the proceedings which he was proved to have taken; nevertheless, the judgment of the Court held that that was a perfectly lawful proceeding, that it was an act of State, that it was authorized by the Portuguese Crown, and no action would lie in this country against an English subject who participated in it."
The essential point was that the blockade was, as a matter of international law, a sovereign act of Portugal in the conduct of its relations with the rest of the world, in particular those nations who might, or whose subjects might, seek to run the blockade in support of the Queen of Portugal's domestic enemies.
"If it were a private transaction ..., then the law on which the rights of individuals may depend might have been a matter of fact to be inquired into, and for the court to adjudicate upon, not as a matter of law, but as a matter of fact. ... If it be a matter of sovereign authority, we cannot try the fact whether it be right or wrong: The allegation that it is contrary to the laws of Hanover, taken in conjunction with the allegation of the authority under which the defendant had acted, must be conceded to be an allegation, not that it was contrary to the existing laws as regulating the right of individuals, but that it was contrary to the laws and duties and rights and powers of a Sovereign exercising sovereign authority. If that be so, it does not require another observation to shew, because it has not been doubted, that no court in this country can entertain questions to bring Sovereigns to account for their acts done in their sovereign capacities abroad."
The rest of the House agreed, Lord Campbell observing at p 26 that even if the Duke of Cambridge, who was not a sovereign, had been sued "it would equally have been a matter of state", and at p 27 that the Court of Chancery "I presume would not grant an injunction against the French Republic marching an army across the Rhine or the Alps."
"Of the propriety or justice of that act, neither the court below/or the Judicial Committee have the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy."
In Cook v Sprigg [1899] AC 572 another case of colonial annexation, Lord Halsbury LC expressed the same principle in terms which would subsequently be taken up by Lord Wilberforce in Buttes Gas & Oil Co v Hammer [1982] AC 888, 933F-G:
"It is a well-established principle of law that the transactions of independent states between each other are governed by other laws than those which municipal courts administer."
207. In Carr v Fracis Times [1902] AC 176, the captain of HMS Lapwing, acting on the authority of the Sultan of Muscat, seized a cargo of ammunition within the territorial waters of Muscat. The proclamation which authorised the seizure was lawful by the law of Muscat. The case might have been decided on ordinary choice of law grounds. But the Sultan's proclamation was challenged on the ground that he had made it under a mistake as to the destination of the cargo. This argument was rejected because, mistaken or not, the proclamation was an act of state. Lord Halsbury LC said, at p 179:
"It is not an act as between person and person; it is an act of state which the Sultan says authoritatively is lawful; and I cannot doubt that under such circumstances the act done is an act which is done with complete authority and cannot be made the subject of an action here."
He went on to say (pp 179-80) that it made no difference that the seizure was carried out by a British naval officer.
United States cases
" We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory. Each state is sovereign throughout its domain. The acts of the defendant for which he is sued were done by him in the exercise of that part of the sovereignty of St Domingo which belongs to the executive department of that government. To make him amenable to a foreign jurisdiction for such acts, would be a direct assault upon the sovereignty and independence of his country. The only remedy for such wrongs must be sought through the intervention of the government of the person injured."
"Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. ... Where a civil war prevails, that is, where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military force, generally speaking foreign nations do not assume to judge of the merits of the quarrel."
It is clear that for the court the critical factor was the subsistence of armed hostilities. Hernandez was "a military commander representing the authority of the revolutionary party as a government, which afterwards succeeded and was recognized by the United States."
"The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'. It is not necessary to consider, as the New Jersey court did, the validity of the levy of the contribution made by the Mexican commanding general, under rules of international law applicable to the situation, since the subject is not open to re-examination by this or any other American court. The remedy of the former owner, or of the purchaser from him, of the property in controversy, if either has any remedy, must be found in the courts of Mexico or through the diplomatic agencies of the political department of our Government."
England: the Russian Revolution cases
213. Johnstone v Pedlar [1921] 2 AC 262 did not involve a foreign act of state. It is the leading modern authority for the proposition that Crown act of state is not a plea available to a defendant in relation to acts done in the United Kingdom, even against aliens. But in the course of distinguishing between Crown and foreign acts of state, Lord Sumner summarised the effect of the latter doctrine as follows, at p 290:
"Municipal Courts do not take it upon themselves to review the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign state done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification."
Shortly after this statement was made, the principle stated was applied in a series of cases heard after the United Kingdom's recognition of the Soviet government, which arose from the confiscation of private property in Russia in the aftermath of the Russian Revolution. These raised questions very similar to those which had been considered by the courts of the United States.
Buttes Gas
"It was argued that this prohibition of exports to South Africa was a hostile act against a Commonwealth country with which we have close relations, that such a prohibition is contrary to international usage, and that we cannot recognize it without taking sides in the dispute between India and South Africa. My Lords, it is quite impossible for a court in this country to set itself up as a judge of the rights and wrongs of a controversy between two friendly countries, we cannot judge the motives or the justifications of governments of other countries in these matters and, if we tried to do so, the consequences might seriously prejudice international relations. By recognizing this Indian law so that an agreement which involves a breach of that law within Indian territory is unenforceable we express no opinion whatever, either favourable or adverse, as to the policy which caused its enactment."
Lord Keith of Avonholm, concurring, said at p 327:
"The English courts cannot be called on to adjudicate upon political issues between India and South Africa."
"A second version of 'act of state' consists of those cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation - often, but not invariably, arising in cases of confiscation of property. Mr Littman gave us a valuable analysis of -such cases as Carr v Fracis Times & Co [1902] AC 176; Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532 and Princess Paley Olga v Weisz [1929] 1 KB 718, suggesting that these are cases within the area of the conflict of laws, concerned essentially with the choice of the proper law to be applied.
Two points were taken as regards the applicability of this line of authority. First, it was said that foreign legislation can be called in question where it is seen to be contrary to international law or to public policy; the decree of 1969/70 was so contrary. Secondly, it was contended that foreign legislation is only recognised territorially - ie within the limits of the authority of the state concerned.
In my opinion these arguments do not help the respondents. As to the first, it is true, as I have pointed out, that the attack on Sharjah's decree of 1969/70 is not upon its validity under the law of Sharjah, but upon its efficacy in international law. But this brings it at once into the area of international dispute. It is one thing to assert that effect will not be given to a foreign municipal law or executive act if it is contrary to public policy or to international law (cf In re Helbert Wagg & Co Ltd's Claim [1956] Ch 323) and quite another to claim that the courts may examine the validity, under international law or some doctrine of public policy, of an act or acts, operating in the area of transactions between states.
The second argument seems to me to be no more valid. To attack the decree of 1969/70 extending Sharjah's territorial waters, ie its territory, upon the ground that the decree is extra-territorial seems to me to be circular or at least question begging."
"... the essential question is whether ... there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of 'act of state' but one for judicial restraint or abstention. ... In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process."
Lord Wilberforce regarded the "general principle" as being derived from a "wider principle" concerning the transactions of sovereign states, of which the cases about the expropriation of property under municipal law were no more than a part. While eschewing arguments about terminology, he appears in this passage to have regarded the "general principle" as something different from the act of state doctrine. It is unquestionably different from the rule about the application to a sovereign act of the sovereign's municipal law, which was I think the only point that he was making. There is much to be said for the view of Rix LJ, delivering the judgment of the Court of Appeal in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, para 66, that
"Lord Wilberforce's principle of 'non-justiciability' has, on the whole, not come through as a doctrine separate from the act of state principle itself, but rather has to a large extent subsumed it as the paradigm restatement of that principle. It would seem that, generally speaking, the doctrine is confined to acts of state."
However, I do not believe, any more than Lord Wilberforce did, that anything is gained by arguments about labels. He proceeded to make good his "general principle" by reference to the decisions in Blad v Bamfield and Duke of Brunswick v King of Hanover. The latter case, which Lord Wilberforce regarded as "still authoritative", has generally been cited both in England and the United States as turning on the act of state doctrine. Lord Wilberforce regarded it as authority for the proposition that "the courts will not adjudicate upon acts done abroad by virtue of sovereign authority." He considered that it was the basis of the US Supreme Court's decisions in Underhill v Hernandez and Oetjen v Central Leather Co, the cases which provided the foundation for the act of state doctrine in the United States, and which he had cited with approval at pp 933-934.
"It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and for issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive), there are ... no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were 'unlawful' under international law."
Recent decisions
222. In R (Abbasi) v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598; [2003] UKHRR 76 the Court of Appeal declined to decide that the detention of prisoners in Guantanamo Bay was contrary to the obligations of the Unites States under the 3rd Geneva Convention. At para 32, the court accepted the following statement by Counsel of the general rule:
"It is well established that the English court will not adjudicate upon the legality of a foreign state's transactions in the sphere of international relations in the exercise of sovereign authority, citing Buttes Gas and Oil v Hammer [1982] AC 888 at 932 (per Lord Wilberforce); Westland Helicopters Ltd v AOI [1995] QB 282. To do so would involve a serious breach of comity: see Buck v Attorney General [1965] 1 Ch 745 at 770-771 (per Lord Diplock) and R v Secretary of State, Ex p British Council of Turkish Cypriot Associations 112 ILR 735 at 740 (per Sedley J). [Counsel] observed that the relief sought by the claimants was founded on the assertion that the United States government was acting unlawfully. For the court to rule on that assertion would be contrary to comity and to the principle of state immunity."
223. Apart from the decisions in the present case, the most recent discussion of the principles underlying the foreign act of state doctrine is the decision of the Court of Appeal in R (Noor Khan) v Secretary of State for Foreign Affairs [2014] 1 WLR 872. The case raised issues in some ways similar to the present ones. The claimant's father had been killed in Pakistan by a missile fired from an American drone. He applied for judicial review of the decision of the Foreign Secretary to supply intelligence to the United States for use in targeting drone strikes and sought various declarations as to the lawfulness of supplying "locational" intelligence for this purpose. His case was that an official passing intelligence in these circumstances committed an offence by encouraging or assisting an act by the American operators of the drone which would, if committed by a British subject, amount to murder, contrary to sections 44 to 46 of the Serious Crimes Act 2007. The Court of Appeal dismissed the application on grounds of both principle and discretion. Addressing the point of principle, it adopted the following statement of Moses LJ in the Divisional Court as a correct statement of principle:
"It is necessary to explain why the courts would not even consider, let alone resolve, the question of the legality of United States' drone strikes. The principle was expressed by Fuller CJ in the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250, 252: 'Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves' (cited with approval in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888, 933, and R v Jones (Margaret) [2007] 1 AC 136, 163).
The principle that the courts will not sit in judgment on the sovereign acts of a foreign state includes a prohibition against adjudication on the legality, validity or acceptability of such acts, either under domestic law or international law: Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1080, para 24. The rationale for this principle, is, in part, founded on the proposition that the attitude and approach of one country to the acts and conduct of another is a matter of high policy, crucially connected to the conduct of the relations between the two sovereign powers. To examine and sit in judgment on the conduct of another state would imperil relations between the states: Buttes Gas case [1982] AC 888, 933."
"But none of this can disguise the fact that in reality the court will be asked to condemn the acts of the persons who operate the drone bombs. Whilst for the purposes of the 2007 Act these persons are to be treated as if they are UK nationals, everyone knows that this is a legal fiction devised by Parliament in order to found secondary liability under sections 44 to 46. In reality, the persons who operate the drones are CIA officials and in doing so they are implementing the policy of the US Government. ... In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country."
Remedies by way of judicial review are of course discretionary. But the only relevance of the discretion to this decision was that it enabled the court to ignore any difference that there might be between the legal analysis and the public perception, and to reject the claim on the ground that it would embarrass Anglo-American relations, a consideration that would be irrelevant to a claim of right. For present purposes, the point is that the claimant's allegations involved a challenge to the lawfulness under English law of the acts of British officials, who were said to have incurred an accessory liability for murder by US forces. If Mr Khan, instead of applying for judicial review, had claimed damages in tort for personal injury, in his own right or on behalf of his father's estate, no discretion would have been involved. But he would still have lost, on the point of principle identified by Moses LJ and approved in the Court of Appeal. It should be noted that the principle stated by Moses LJ and approved by the Court of Appeal was founded on the rule formulated by Fuller CJ in Underhill v Hernandez.
The search for general principle
225. The English decisions have rarely tried to articulate the policy on which the foreign act of state doctrine is based and have never done so comprehensively. But it is I think possible to discern two main considerations underlying the doctrine. There is, first and foremost, what is commonly called "comity" but I would prefer to call an awareness that the courts of the United Kingdom are an organ of the United Kingdom. In the eyes of other states, the United Kingdom is a unitary body. International law, as Lord Hoffmann observed in R v Lyons [2003] 1 AC 976 at para 40, "does not normally take account of the internal distribution of powers within a state." Like any other organ of the United Kingdom, the courts must respect the sovereignty and autonomy of other states. This marks the adoption by the common law of the same policy which underlies the doctrine of state immunity. Secondly, the act of state doctrine is influenced by the constitutional separation of powers, which assigns the conduct of foreign affairs to the executive. This is why the court does not conduct its own examination of the sovereign status of a foreign state or government but treats the Secretary of State's certificate as conclusive: Government of the Republic of Spain v SS "Arantzazu Mendi" [1939] AC 256, 264 (Lord Atkin). It is why Lord Templeman graphically described the submissions of the claimants in the Tin Council case as involving "a breach of the British constitution and an invasion by the judiciary of the functions of the Government and of Parliament": see p 476. To that extent the rationale of the foreign act of state doctrine is similar to that of the corresponding doctrine applicable to acts of the Crown, as Elias LJ observed in Al-Jedda v Secretary of State for Defence [2011] QB 773, paras 209-212.
226. When one turns to the ambit of the doctrine, the first point to be made is that there are many cases involving the sovereign acts of states, whether British or foreign, in which the action fails, not on account of any immunity of the subject matter from judicial scrutiny, but because the acts in question are legally irrelevant. They give rise to no rights as a matter of private law and no reviewable questions of public law. It is on this ground that the court will not entertain an action to determine that Her Majesty's government is acting or proposes to act in breach of international law in circumstances where no private law status, right or obligation depends on it: R (Campaign for Nuclear Disarmament) v Prime Minister [2001] EWHC 1777 (Admin); R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin). Unlike Mr Khan, who contended that his father had been killed as a result of breaches of English domestic law, the claimants had, as Cranston J put it in the latter case, at para 60, no "domestic foothold"; cf Shergill v Khaira [2015] AC 359 at para 43. By comparison Mr Khan did have a domestic foothold. He had standing to apply for judicial review, and he contended that his father had been killed because of a breach by British officials of English law, but the court declined to treat the matter as governed by ordinary principles of English law because of its subject-matter. The same is true of the present cases. They are concerned with the effect of a foreign act of state in a case where private law rights are engaged, because the claimants rely on the acts of the relevant states as ordinary torts under the municipal law of the countries in which they were committed. The question that we have to decide on this appeal is whether they can do so consistently with the law relating to foreign acts of state.
Municipal law act of state
228. The first principle can conveniently be called "municipal law act of state". It comprises the two varieties of foreign act of state identified in the judgment of Lord Mance at paras 11(iii)(a) and (b) of his judgment, although he would limit it to legislative or executive acts against property. The principle is that the English courts will not adjudicate on the lawfulness or validity of a state's sovereign acts under its own law. Municipal courts, as Lord Sumner put it in Johnstone v Pedlar [1921] 2 AC 262, 290, "do not control the acts of a foreign State done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification." In Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2), supra, at para 110, Rix LJ formulated the principle as involving a distinction
"between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to inquire into them for the purpose of adjudicating upon their legal effectiveness, including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground, for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it was unfair or expropriatory or discriminatory."
229. Municipal law act of state is by definition confined to sovereign acts done within the territory of the state concerned, since as a general rule neither public nor private international law recognises the application of a state's municipal law beyond its own territory. It has commonly been applied to legislative acts expropriating property: examples include Carr v Fracis Times, Luther v Sagor and the general principle which served as the starting point of the House of Lords in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 (see paras 257-258 below). In these cases, title will have passed under the lex situs and the expropriation will be recognised in England on ordinary choice of law grounds unless, exceptionally, its recognition would be contrary to public policy. In this context, it is difficult to see that anything is added by calling the expropriation an act of state. However, the fact that the act of state doctrine and ordinary choice of law principles lead to the same result in the case of the legislative expropriations of property, does not entitle one to press the analogy any further. In particular, it cannot follow that municipal law act of state is limited to legislative acts expropriating property. Property is of course special for some purposes. It is likely to be under the exclusive jurisdiction of the state where it is located. It is marketable and may be tradeable internationally. It gives rise to policies favouring certainty of title. Considerations like these go some way to explaining why the lex situs of property is generally regarded as the law with the closest connection to an issue about title, and is for that reason designated as the proper law. But it is difficult to see that they have any bearing on the very different problems with which the act of state doctrine is concerned. The rules governing the choice of law are concerned with the law to be applied in determining an issue assumed to be justiciable, while the act of state doctrine in all its forms is concerned with the proper limits of the English court's right to determine certain kinds of issue at all.
International law act of state
235. Dicey, Morris & Collins on the Conflict of Laws, 15th ed (2012) write at para 5-049:
"The act of state doctrine has no application when it is clear that the relevant acts were done outside the sovereign's territory."
The authority cited for this statement is the decision of the Court of Appeal in Empresa Exportadora de Azucar v Industria Azucarera Nacional CA (The "Playa Larga" and the "Marble Islands") [1983] 2 Lloyd's Rep 171, 194. The facts of that case were that a Cuban state-owned trading enterprise had sold two cargoes of sugar for delivery at a Chilean port. President Allende's government in Chile was overthrown while one of the ships, the Playa Larga, was discharging at Valparaiso and the other, the Marble Islands, was on its way. Both vessels were operated by another Cuban state enterprise. The Cuban government arranged for the Playa Larga to leave Chile with part of its cargo still on board and for the Marble Islands to be diverted elsewhere. In an arbitration under the contract of sale, the tribunal awarded the Chilean buyers damages for non-delivery and conversion of the undelivered part of the cargo of the Playa Larga, together with the restitution of the purchase price of the cargo of the Marble Islands. Act of state was not raised before the arbitrators, but was said to be available on their findings of fact. It was rejected by the judge and the Court of Appeal on the ground that it was not open to the sellers, and was in any event unsound because there was no act of state. The claim arose from a commercial transaction, not a sovereign act: p 193. But the court went on to deal briefly with other points, including the argument that the act of state doctrine was limited to acts done within the territory of the foreign state, which they accepted: p 194. For this, they relied mainly on statements in Duke of Brunswick v King of Hanover, Underhill v Hernandez and Buttes Gas.
236. In my opinion the statement in Dicey, Morris & Collins is applicable to what I have called municipal law act of state but not to international law act of state. As I have observed, where the issue is whether the legislative or executive acts of a foreign sovereign are valid or lawful under its own municipal law, a limit to the sovereign's territory follows as a matter of course from the rule itself. This is because, with limited exceptions, generally governed by treaty, international law does not recognise the right of states to apply its domestic public laws extra-territorially: France v Turkey (Affaire du "Lotus") PCIJ, Series A, No 10, at pp 18-19. This limitation is recognised in the municipal law of most states, and is a fundamental principle of English private international law: see Government of India v Taylor [1955] AC 491, 511 (Lord Keith of Avonholm); Ortiz v Attorney General of New Zealand [1984] AC 1, 21 (Lord Denning MR); Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368, 428, 430-3; In re State of Norway's Application [1990] AC 723, 808 (Lord Goff). All of the judicial observations supporting the territorial limitation of the foreign act of state doctrine, including those on which the Court of Appeal relied in the Playa Larga, have been made in the context of challenges to the recognition of foreign municipal legislation or to the lawfulness of an executive act of state under the foreign state's municipal law: see Duke of Brunswick v King of Hanover, supra, at 17; Hatch v Baez, supra, at p 599; Underhill v Hernandez, supra, at p 252; Buttes Gas, at p 931A-B; WS. Kirkpatrick & Co Inc v Environmental Tectonics Corporation International, 493 US 400 (1900) 400, 405; Kuwait Airways Corpn v Iraqi Airways Co (Nos 4&5), at para 135 (Lord Hope); A Ltd v B Bank [1997] FSR 165, at para 13.
237. Turning to international law act of state, the position is different. Where the question is the lawfulness of a state's acts in its dealings with other states and their subjects, the act of state doctrine applies wherever the relevant act of the foreign state occurs (save, arguably, if it occurred in the United Kingdom: see A Ltd v B Bank [1997] FSR 165 at para 13). The reason is, again, inherent in the principle itself. It is not concerned with the lawfulness of the state's acts under municipal systems of law whose operation, in the eyes of other states, is by definition territorial, but with acts whose lawfulness can be determined only by reference to international law, which has no territorial bounds. In the nature of things a sovereign act done by a state in the course of its relations with other states will commonly occur outside its territorial jurisdiction. States maintain embassies and military bases abroad. They conduct military operations outside their own territory. They engage in intelligence-gathering. They operate military ships and aircraft. All of these are sovereign acts. The paradigm cases are acts of force in international space or on the territory of another state. "Obvious examples", as Lord Pearson observed in Nissan v Attorney General [1970] AC 179, 237, "are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory." In my opinion, subject to the important public policy exception to which I shall come, it is not open to an English court to apply the ordinary law of tort, whether English or foreign, to acts of this kind committed by foreign sovereign states. Thus if, in the Playa Larga, the Cuban mode of prosecuting its dispute with General Pinochet's government in Chile had been an act of state, it would have been contrary to principle for an English court to judge its lawfulness according to English (or any other) municipal law, whether it happened in Cuba, Chile or on the high seas. In Dobree v Napier the relevant acts occurred on the high seas, but their inherently governmental character made it impossible to treat it as a tortious conversion of goods under English municipal law. In Buttes Gas, it was impossible to know in whose territory they had occurred, since that begged the question at issue, but Lord Wilberforce's "wider principle" was applied regardless of the answer to that question. The Court of Appeal proceeded on the same basis in R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs, where the relevant acts occurred in Pakistan. I think that they were right to do so.
Juridical basis
239. The foreign act of state doctrine has commonly been described as a principle of non-justiciability. The label is unavoidable, but it is fundamentally unhelpful because it is applied to a number of quite different concepts which rest on different principles. One, comparatively rare, case in which an issue may be non-justiciable is that although it is legally relevant, the courts are incompetent to pronounce upon it or disabled by some rule of law from doing so. Leaving aside cases in which the issue is assigned to the executive or the legislature under our conception of the separation of powers, most cases of this kind involve issues which are not susceptible to the application of legal standards. The most famous example is Buttes Gas, where Lord Wilberforce declined to resolve the issue because there were no "judicial or manageable standards" by which to do so. The court was therefore incompetent to adjudicate upon it at all. As this court pointed out in Shergill v Khaira [2015] AC 359 at para 40, this was because the issue was political. But there is another sense in which an issue may be non-justiciable, which is also illustrated by the facts of Buttes Gas. It may be non-justiciable because the English court ought not to adjudicate upon it even though it can, because it is not a matter which can properly be resolved by reference to the domestic law of the state. Occidental's contention in Buttes Gas was that the mixture of diplomacy and power politics by which the four states involved had eventually resolved the border dispute in a manner unsatisfactory to them, could be characterised as an unlawful conspiracy for the purposes of domestic law. An unlawful conspiracy is in itself justiciable. It is a recognised cause of action in English law. But an English court could not adjudicate upon it because it was parasitic upon a finding that the foreign states involved had acted in breach of international law, being the only law relevant to their acts. This too can fairly be called a principle of non-justiciability, because its effect is that it is not the proper function of the English courts to resolve the issue. But Buttes Gas has been widely misunderstood as suggesting that an absence of judicial or manageable standards is the juridical basis of the foreign act of state doctrine in all cases where it is applied to the transactions of sovereign states. It is not. The absence of judicial or manageable standards was simply the reason why the House declined to review the particular facts alleged in that case.
Incidental unlawfulness
240. The act of state doctrine does not apply, in either form, simply by reason of the fact that the subject-matter may incidentally disclose that a state has acted unlawfully. It applies only where the invalidity or unlawfulness of the state's sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it. There is no real difference between the parties on this point, but it is worth emphasising none the less, for it is of some importance. Some such distinction is essential if the act of state doctrine is not to degenerate into a mere immunity against international embarrassment. The principle is implicit in many of the English cases, but it can best be illustrated by the decision of the US Supreme Court in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International, 493 US 400 (1990), which is also the case in which it was first clearly articulated. Environmental Tectonics had succeeded in a competitive tender for a construction contract with the government of Nigeria. The plaintiff, an unsuccessful bidder, alleged that the company had bribed Nigerian government officials, and claimed damages under various US federal statutes. The receipt of bribes was illegal under Nigerian law, but the Supreme Court held that the act of state doctrine did not apply because the legal implications of bribery in Nigerian law were not a necessary part of the plaintiff's case. He had only to prove that the bribes had been paid, and that Environmental Tectonics had thereby committed an act unlawful under US law. That the facts would incidentally disclose offences by the bribed officials was irrelevant. Scalia J, delivering the judgment of the Court held (p 406) that "act of state issues only arise when a court must decide - that is, when the outcome of the case turns upon - the effect of official action by a foreign sovereign."
The judgment of Leggatt J
243. In his judgment in Rahmatullah, Leggatt J accepted that there was a difference between cases which turned on the application to a state's sovereign acts of its own municipal law, and cases concerning transactions between states. Indeed, he regarded them as juridically wholly distinct. Borrowing a concept from the decisions of the United States Supreme Court in Ricaud v American Metal Co Ltd 246 US 304 (1918) and WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International, 493 US 400 (1990), 406, he described what he called the "traditional" act of state doctrine as a "rule of decision" applicable to challenges to the lawfulness of an act of state under the state's municipal law. By this he meant that it "requires the court to decide the case on the footing that the relevant acts of a foreign state were valid under its own law" (para 123). By comparison, in cases concerning the transactions of foreign sovereign states, the rule was one of "judicial restraint or abstention". It "prevents a court from deciding or adjudicating upon a case on the ground that its subject matter is not suitable for judicial determination." He regarded judicial restraint or abstention as being required only when there were no "judicial or manageable standards", and that, he thought, could never be the case if a municipal law right was engaged. For this last point, he relied mainly on the decision of this court in Shergill v Khaira [2015] AC 359.
244. It will be apparent from what I have already said that I cannot accept this analysis. In the first place, I doubt whether the act of state doctrine, as applied to the sovereign acts of a foreign state, is helpfully described as a "rule of decision". The principle, at any rate in the English case law, is one of non-justiciability. It is that the court will decline to determine the lawfulness of an act of state, not that it will determine its lawfulness on some assumption about the content of the foreign law. Secondly, not all cases in which the foreign act of state doctrine is applied to transactions between states lack "judicial or manageable standards" for their decision. The courts are, for example, perfectly competent to construe treaties, and regularly do so when municipal law rights depend on it: Republic of Ecuador v Occidental Exploration and Petroleum Co [2006] QB 432. As Lord Wilberforce pointed out in Buttes Gas (p 926F), they are competent to determine the international boundaries of sovereign states and have done so "without difficulty" in proper cases. On the facts of R (Noor Khan) v Secretary of State for Foreign Affairs, the courts would have been competent to apply English criminal law to the operators of drones over Pakistan. If the courts, in appropriate cases, decline to do these things, it is usually not because of any lack of legal standards, but because it would be contrary to principle.
246. Leggatt J's analysis derives some support from the decision of the High Court of Australia in Moti v The Queen 245 CLR 456. The facts of this case were somewhat similar to those of the English cases of R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520. In these cases, it had been held that the involuntary deportation of an accused person from a foreign country by British officials to face trial in England, otherwise than by way of lawful extradition, was an abuse of process in English criminal proceedings. In each case, the deportation had been carried out with the co-operation of the police in the foreign country. What made this an abuse of process was the breach of the domestic law of the foreign country and of international law by the British prosecuting authorities or British officials acting in support of them: see Bennett, at pp 62G (Lord Griffiths), 67G (Lord Bridge); and Mullen, at p 535F. The assumed facts suggested that the local police must also have acted in breach of their own law, but I cannot accept Lord Mance's view that this was critical to the analysis. The removal of the victim to the jurisdiction in which he was brought to trial would have been as much an abuse of process and for exactly the same reasons if the prosecutors had simply kidnapped him with no assistance from local officials. Any unlawfulness in the conduct of the foreign officials was incidental. That was presumably why no point was taken on the foreign act of state doctrine in either of the English cases. Mr Moti's position was exactly the same. He had been illegally deported from the Solomon Islands by a process in which Australian officials in the Islands were involved. His case was that the criminal proceedings should be stayed "because of what Australian officials did in connection with his deportation" (para 9). On this occasion the foreign act of state doctrine was raised. The short answer to this would have been that the unlawfulness of the Australian officials' conduct was enough to justify staying the proceedings against Mr Moti. The unlawfulness of the acts of their foreign collaborators was incidental and irrelevant. But in rejecting the argument, the Court adopted the view of Dr F A Mann, a long-standing critic of the act of state doctrine, that there was no bar to adjudication of the lawfulness of a foreign governmental act if it was necessary to the resolution of an issue within the jurisdiction and competence of the forum: see paras 50-52. In my view this was too wide and certainly wider than anything that was required for the decision of the case.
The judgment of the Court of Appeal
Violations of international law or fundamental human rights
252. At the same time, the relationship between English law and international law has changed. It used to be said that customary international law is part of the common law. The sentiment dates back to Lord Mansfield in Triquet v Bath (1764) 3 Burr 1478, 1481 and Blackstone's Commentaries, Bk IV, Chapter 5. The classic example in their day was the recognition at common law of the immunities of states and diplomatic agents. At a time when there was very little overlap between international and municipal law, the assumption of Mansfield and Blackstone had much to be said for it. Today it would be truer to say, as Lord Bingham was inclined to think in R v Jones (Margaret) [2007] 1 AC 136 (para 11), that international law is not a part of but is one of the sources of the common law. The same view has been expressed by Professor Brierly, 'International Law in England' (1935) 51 LQR 24, 31, and by the editors of Brownlie's Public International Law, 8th ed (2012), 68. English law has always held to the dualist theory of international law. In principle, judges applying the common law are not at liberty to create, abrogate or modify municipal law rights or obligations in accordance with unincorporated norms derived from international law, whether customary or treaty-based. But, as Lord Bingham pointed out in R v Lyons [2003] 1 AC 976, at para 13, international law may none the less affect the interpretation of ambiguous statutory provisions, guide the exercise of judicial or executive discretions and influence the development of the common law. Although the courts are not bound, even in these contexts, to take account of international law, they are entitled to do so if it is appropriate and relevant: see, in the context of discretions R (Hurst) v London Northern District Coroner [2007] 2 AC 189, paras 53-59 (Lord Brown), and R (Wang Yam) v Central Criminal Court [2015] UKSC 76, at paras 35-36 (Lord Mance). In those areas which depend on public policy, the content of that policy may be and in practice often is influenced by international law.
253. These observations are especially pertinent when public policies conflict, as they inevitably do when one seeks to fix limits to a principle of law such as the foreign act of state doctrine. There is a danger that retaining the doctrine while recognising exceptions, will result either in the exception consuming the rule or in the rule becoming incoherent. This concern lies behind the refusal of the US Supreme Court to treat a violation of international law as such as being an exception to the foreign act of state doctrine: see Banco Nacional de Cuba v Sabbatino, supra, at p 431. Any exception must be limited to violations of international law which can be distinguished on rational grounds from the rest. This was the question with which the House of Lords had to contend in the milestone decisions in Oppenheimer v Cattermole [1976] AC 249 and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883.
"Respect for the act of state doctrine and the care that must be taken not to undermine it do not preclude this approach. The facts are clear, and the declarations by the Security Council were universal and unequivocal. If the court may have regard to grave infringements of human rights law on grounds of public policy, it ought not to decline to take account of the principles of international law when the act amounts - as I would hold that it clearly does in this case - to a flagrant breach of these principles. As Lord Upjohn indicated in In re Claim by Helbert Wagg Co Ltd [1956] Ch 313, 334, public policy is determined by the conceptions of law, justice and morality as understood in the courts. I would hold that the effectiveness of Resolution 369 as vesting title in IAC to KAC's aircraft is justiciable in these proceedings, and that such a flagrant international wrong should be deemed to be so grave a matter that it would be contrary to the public policy of this country to give effect to it."
257. The principle which the Appellate Committee applied in Kuwait Airways was that the English courts were not precluded from questioning the propriety or otherwise of a foreign legislative act and declining to recognise it, if it offended a "fundamental requirement of justice as administered by an English court." It is the same as the principle which allows an English court to decline to apply a rule of an otherwise applicable foreign law which is contrary to public policy: see, now, section 14(3)(a)(i) of the Private International Law (Miscellaneous Provisions) Act 1995. This is a principle of English public policy. But in an international context, it is informed by any relevant norms of international law binding on the United Kingdom as it was in Kuwait Airways. Recognition of the influence of international law does not mean that every rule of international law must be adopted as a principle of English public policy, even if it is acknowledged as a peremptory norm ( jus cogens) at an international level. For my part, I would adopt the cautious observations of Le Bel J, delivering the judgment of the Supreme Court of Canada in Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 176 at paras 150-151. The issue before the court in that case was whether to recognise a public policy exception to state immunity in cases where this would conflict with the values protected by the Canadian Charter of Rights and Freedoms. Le Bel J pointed out that
"... not all commitments in international agreements amount to principles of fundamental justice. Their nature is very diverse. International law is ever changing. The interaction between domestic and international law must be managed carefully in light of the principles governing what remains a dualist system of application of international law and a constitutional and parliamentary democracy. The mere existence of an international obligation is not sufficient to establish a principle of fundamental justice. Were we to equate all the protections or commitments in international human rights documents with principles of fundamental justice, we might in effect be destroying Canada's dualist system of reception of international law and casting aside the principles of parliamentary sovereignty and democracy."
The role of international law in this field, as he went on to point out, is to influence the process by which judges identify a domestic principle as representing a sufficiently fundamental legal policy:
"151. That being said, I am prepared to accept that jus cogens norms can generally be equated with principles of fundamental justice and that they are particularly helpful to look to in the context of issues pertaining to international law. Just as principles of fundamental justice are the 'basic tenets of our legal system' ..., jus cogens norms are a higher form of customary international law. In the same manner that principles of fundamental justice are principles 'upon which there is some consensus that they are vital or fundamental to our societal notion of justice', jus cogens norms are customs accepted and recognized by the international community of states from which no derogation is permitted ..."
Torture
258. The legal implications of torture in English and international law have been considered by the House of Lords on a number of occasions: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270. Torture is unconditionally prohibited by article 3 of the European Convention on Human Rights and by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The United Kingdom is a party to these instruments and has given effect to them by statute. The prohibition has the status of jus cogens erga omnes. That is to say that it is a peremptory norm of international law which gives rise to obligations owed by each state to all other states and from which no derogation can be justified by any countervailing public interest. In the words of article 2.1 of the UN Torture Convention, "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." In A v Secretary of State for the Home Department (No 2), supra, at para 33, Lord Bingham, said:
"There can be few issues on which international legal opinion is more clear than on the condemnation of torture. Offenders have been recognised as the 'common enemies of mankind' ( Demjanjuk v Petrovsky (1985) 612 F Supp 544, 566, Lord Cooke of Thorndon has described the right not to be subjected to inhuman treatment as a 'right inherent in the concept of civilisation' ( Higgs v Minister of National Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals has described the right to be free from torture as 'fundamental and universal' ( Siderman de Blake v Argentina 965 F2d 699, 717) and the UN Special Rapporteur On Torture (Mr Peter Koojimans) has said that 'If ever a phenomenon was outlawed unreservedly and unequivocally it is torture' (Report of the Special Rapporteur on Torture, E/CN 4/1986/15, para 3)."
"State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement."
Lord Hoffmann, concurring, said, at para 45:
"To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But ... it is not entailed by the prohibition of torture."
Lord Bingham and Lord Hoffmann went on to consider whether an obligation to make a civil remedy available could be derived from the Torture Convention. They concluded that it could not. Article 14 of the Torture Convention, which dealt with the state's obligations in respect of civil remedies, dealt only with remedies for torture committed within the state's territorial jurisdiction.
260. These conclusions have provoked some academic controversy and have been criticised by the respondents on these appeals. But they were supported by the decision of the International Court of Justice in Democratic Republic of Congo v Belgium (case concerning arrest warrant of 11 April 2000) (2002) ICJ Rep 3, in which state immunity was held to be available in proceedings based on breach of another peremptory norm of international law, namely the prohibition of war crimes and crimes against humanity. More recently, in Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) [2012] ICJ Rep 99, the International Court of Justice reaffirmed its decision in Arrest Warrant and held that Italy and Greece were in breach of customary international law in rejecting claims by Germany to state immunity in respect of massacres and deportations of civilians by German armed forces in Italy and Greece during the Second World War. The Court specifically endorsed the decision of the House of Lords in Jones v Saudi Arabia: see paras 85, 87, 96. In its reasoning, the International Court adopted the same distinction between procedure and substance as Lord Bingham at para 24 of his speech in that case:
"To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition. A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application." (para 95)
Since that decision, the European Court of Human Rights in Jones v United Kingdom (2014) 59 EHRR 1, at para 198 and the Supreme Court of Canada in Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 176 at paras 102-105, 141-167, have both conducted a careful review of the international material and the decisions of national courts, and arrived at the same conclusion on this point as the House of Lords did in Jones.
263. This is not a point which has arisen in any English case apart from R (Noor Khan) v Secretary of State for Foreign Affairs. But it was considered by the Supreme Court of Canada in Omar Ahmed Khadr v Canada [2008] 2 SCR 125 and by the Federal Court of Australia in Habib v Commonwealth[2010] FCAFC 12; (2010) 265 ALR 50.
264. Khadr was not a case of torture. The plaintiff had been captured by US forces in Afghanistan and transferred to Guantanamo Bay. The allegation was that Canadian officials had connived in his unlawful detention there by the United States government. The Supreme Court of Canada held that the foreign act of state doctrine had no application for two reasons. First, the US Supreme Court in Rasul v Bush 542 US 466 had held that the indefinite detention without access to a court of persons captured in military operations was a violation of the Geneva Conventions: paras 21-24. That constituted an admission by the United States and made a finding of violation uncontentious. The court declined to consider what the position would have been in the absence of that decision. Secondly, the considerations of comity which underlay the foreign act of state doctrine "cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada's international obligations": para 18.This was because (i) Canada was itself party to the Geneva Convention, and under an international law obligation not to countenance the violations in question, and (ii) the right to apply for habeas corpus was a fundamental human right recognised by Canadian law also: paras 25-26.
"do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra-territorial application."
She went on to point out that the public policy considerations which justified both the act of state doctrine and the exceptions to it had to be considered
"in a context where the prohibition on torture forms part of customary international law and those partners themselves are signatories to an international treaty denouncing torture."
Unlawful detention, enforced disappearance and rendition
"1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
...
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release ...
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."
The Covenant has been ratified by 167 states to date, including the United Kingdom, the United States, Thailand and Libya. Malaysia is one of a handful of states which are not a party, but it has declared that it adheres to its principles.
272. The significant point for present purposes is that the core prohibition in international law of detention without legal basis or recourse to the courts corresponds to a fundamental principle of English public policy. Like English law's rejection of torture it is an essential feature of our constitutional order. It has traditionally been traced, at any rate since the time of Sir Edward Coke, to the 29th article of Magna Carta. Charles James Fox is not always a useful source of constitutional principle, but most lawyers would agree with his famous description of the writ of habeas corpus as the "great palladium of the liberties of the subject". The principle underlying the writ is that the availability of recourse to a court to test the legality of detention is the hallmark of its constitutionality. Indeed, although the position has in some respects been modified by statute, at common law the reach of the writ of habeas corpus has even been held to extend to anywhere in the world where a servant of the Crown or any other person amenable to the personal jurisdiction of the court has detained a person: Ex p Anderson (1861) 3 El & El 487. Or appears to be in a position to procure his production: Rahmatullah v Secretary of State for Defence [2013] AC 614.
"the seizure and transportation by authorities of a criminal suspect from one country to another without the formal process of extradition. ... Sometimes used spec with reference to moving a terrorist suspect for interrogation in a country considered to have less rigorous regulations for the humane treatment of prisoners."
I shall take it to have the meaning given to it by the Belhaj claimants in their Particulars of Claim, namely "a euphemism commonly used since about 2001 to describe covert unlawful abduction organised and carried out by state agents, across international borders, for the purpose of unlawful detention, interrogation and/or torture." The context of Mr Rahmatullah's pleading shows that he is using it in the same sense.
275. Enforced disappearance was described by Leggatt J in R (Al-Saadoon) v Secretary of State for Defence [2015] EWHC 715 (Admin); [2015] 3 WLR 503, para 209, as
"a concept recognised in international law and ... a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state to acknowledge the detention or disclose the fate of the person who has been detained. Its cruelty and vice lie in the facts that the disappeared person is completely isolated from the outside world and at the mercy of their captors and that the person's family is denied knowledge of what has happened to them."
Enforced disappearance is a violation of article 5 of the European Human Rights Convention in the case of persons within the jurisdiction of a Convention state: Kurt v Turkey (1998) 27 EHRR 373. In December 2006 the United Nations adopted a draft Convention for the Protection of all Persons from Enforced Disappearance, which seeks to provide more generally for enforced disappearance. The Convention came into force in December 2010. It has to date been signed by 94 states and ratified by 45. But the parties do not include the United Kingdom, the United States, Malaysia or Libya. Thailand is a signatory, but has not ratified. In these circumstances I consider that the Convention has nothing to contribute to the issues on this appeal.
"secret and/or incommunicado detention constitutes the most heinous violation of the norm protecting the right to liberty of human beings under customary international law. The arbitrariness is inherent in these forms of deprivation of liberty as the individual is left outside the cloak of any legal protection."
Likewise, the European Court of Human Rights has had no difficulty in dealing with rendition cases within the jurisdiction of a Convention state under the broader heading of the right to liberty and security of the person protected by article 5: see El-Masri v Macedonia (2013) 57 EHRR 25; Al-Nashiri v Poland & Husayn v Poland (2015) 60 EHRR 16.
277. Historically, rendition is not a complete stranger to English practice. As Lord Hope pointed out in A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, at paras 106-10, in the second half of the 17th century, persons accused of treason were occasionally deported by administrative decision to Scotland, where confessions could lawfully be extracted from them by torture. More recently, administrative deportation of British subjects was practised by British colonial administrations: M Lobban, "Habeas Corpus, Imperial Rendition and the Rule of Law", Current Legal Problems, (2015) 68, 27-84. But renditions to Scotland were probably always contrary to the law of England, and colonial renditions were only ever accepted by the courts on the basis that the Crown had power to legislate for the colonies in a manner contrary to fundamental principles of English law: see R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 607, 609-610 (Vaughan Williams LJ), 615-617 (Farwell LJ), 627-629 (Kennedy LJ). This digression into history serves mainly to show how much has changed as a result of the adoption of fundamental human rights by English law and, more broadly, its recognition of the broader implications of the rule of law. In the rare modern instances of rendition to the United Kingdom by or with the complicity of British officials, the courts have not been willing to tolerate the consequences. The difference, as Lord Griffiths put it in R v Horseferry Road Magistrates' Court, Ex p Bennett, at p 62A, is that
"the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."
Other cruel, inhuman or degrading treatment
"Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so."
Article 6 of the European Convention on Human Rights
282. Article 6 might in principle apply so far as the application of the foreign act of state doctrine would constitute a denial of the claimants' right to a court: Golder v United Kingdom (1975) 1 EHRR 524. There are circumstances in which an immunity from liability or adjudication will engage article 6. In these cases, it must be justified by reference to the legitimacy of the objective and the proportionality of the means. State immunity is a controversial but well established example in the jurisprudence of the Strasbourg Court: Fogarty v United Kingdom (2002) 34 EHRR 12; Al-Adsani v United Kingdom (2002) 34 EHRR 11; Cudak v Lithuania (2010) 51 EHRR 15; Sabeh El Leil v France 54 EHRR 14. But, except in rare cases where there are no judicial or manageable standards by which to determine an issue, the foreign act of state doctrine is not an immunity. It is a rule of substantive law which operates as a limitation on the subject-matter jurisdiction of the English court. In Roche v United Kingdom 42 EHRR 30 the European Court of Human Rights held that the right to a court protected by article 6 was not engaged by a substantive rule of domestic law excluding liability, but only by a bar which was procedural in nature.
283. The most pertinent illustration is Markovic v Italy 44 EHRR 52. The applicants in this case were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had held that by a rule of substantive law the Italian courts had no jurisdiction over acts of war or indeed over any acts of the Italian state which were impugned on the sole ground that they violated international law. The Strasbourg court applied the distinction between substance and procedure that they had formulated in Roche. They agreed that the limitation on the jurisdiction of the Italian court was substantive. It followed (para 114) that the decision of the Corte de Cassazione, "does not amount to recognition of an immunity but is merely indicative of the extent of the courts' powers of review of acts of foreign policy such as acts of war."
Disposition