Cross-posted from Just Security.
On Tuesday, the Supreme Court of the United Kingdom gave its judgment in Belhaj v. Straw and Rahmatullah v. Ministry of Defence, two human rights cases brought against UK officials in UK courts. Plaintiffs did not claim that UK officials were the main actors in the alleged human rights violations, which included unlawful detention, rendition, and torture. Rather, plaintiffs claimed that UK officials had assisted other countries-principally, the United States and Libya-in committing such violations. The UK officials argued that a court could not decide the assistance claims without ruling on the legality of other countries' actions and that the cases should therefore be dismissed on grounds of state immunity or under the foreign act of state doctrine. But the UK Supreme Court unanimously rejected these arguments. This means that the claims may proceed to trial where the actions of the United States, Libya, and other countries may be reviewed.
Lord Mance gave the leading judgment, with concurring judgments by Lord Neuberger and Lord Sumption. The state immunity question was whether the suits against UK officials indirectly impleaded foreign states because, in order to maintain their claims against the former, the plaintiffs would have to show that the latter acted unlawfully. The act of state question was whether an English court should abstain from adjudicating upon sovereign acts committed by a foreign state, even outside its own territory.
How does the reasoning in Belhaj compare to the approach taken in the United States? What insights might we derive from the UK Supreme Court's treatment of these areas of law and the role of the judiciary in adjudicating questions that implicate international relations?
The UK Supreme Court found the state immunity question to be quite straightforward. No foreign states had been directly impleaded because no claims had actually been brought against them. No foreign states had been indirectly impleaded "because the legal position of the foreign states" would not be affected by the suits. Para. 31 (emphasis added). The Court distinguished past cases in which foreign states were indirectly impleaded because the claims involved property in which the states had an interest. "The present appeals involve no issues of proprietary or possessory title. All that can be said is that establishing the appellants' liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts." Para. 29. Such "reputational" harm was not sufficient. Para. 29. As Lord Sumption put it in his concurring opinion: "No decision in the present case would affect any rights or liabilities of the four foreign states in whose alleged misdeeds the United Kingdom is said to have been complicit. The foreign states are not parties. Their property is not at risk. The court's decision on the issues raised would not bind them." Para. 197.
Although the US Foreign Sovereign Immunities Act (FSIA) differs substantially from the UK State Immunity Act, the approach of the UK Supreme Court on this question was similar to what one would expect in the United States. In Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), the US Supreme Court held that a suit to determine the ownership of property allegedly stolen by Philippine President Marcos could not proceed because the Philippines had a legal interest in the property. This is equivalent to the indirect impleading of a foreign state that the UK Supreme recognized is barred under the State Immunity Act. But in Samantar v. Yousuf, 560 U.S. 305 (2010), the US Supreme Court held that a suit against a foreign official is not necessarily a suit against a foreign state to which state immunity attaches. It would follow a fortiori that a suit a against a domestic official is not necessarily a suit against a foreign state to which state immunity attaches, which is essentially what the UK Supreme Court held in Belhaj. (Parenthetically, it is worth remembering that, in contrast to the US Supreme Court's interpretation of the FSIA in Samantar, the House of Lords has interpreted the State Immunity Act as extending state immunity to foreign officials acting in that capacity. See Jones v. Saudi Arabia, paras. 31 & 69.)
Act of State Doctrine
The foreign act of state doctrine in the United Kingdom, on the other hand, has historically been quite different from the act of state doctrine in the United States. To give two obvious examples: (1) one strand of the UK act of state doctrine is not limited to acts performed within the foreign sovereign's own territory, see Buttes Gas and Oil Co. v. Hammer (No. 3)  AC 888, while the US act of state doctrine is so limited; and (2) the UK act of state doctrine contains a public policy exception, see Oppenheimer v. Cattermole  AC 249; Kuwait Airways Corp. v. Iraqi Airways Co.  2 AC 883, which the US act of state doctrine does not. Each of these differences played a key role in Belhaj.
The three reasoned judgments did not entirely agree about how to organize the past cases-Lord Mance divided the foreign act of state doctrine into three types, Lord Neuberger into four, and Lord Sumption into two-nor did they agree about the proper terminology. But in the end, all members of the Court agreed on the key points and on their application to these cases. Certain strands of the UK act of state doctrine are territorially limited (specifically the first two types identified by Lords Mance and Neuberger, which Lord Sumption called the "municipal law act of state doctrine"). These strands were thus inapplicable to those claims that involved acts-particularly those of the United States-outside the foreign sovereign's own territory. But each of the judgments also identified a strand of the act of state doctrine that is not territorially limited (specifically the third type identified by Lords Mance and Neuberger, which Lord Sumption called the "international law act of state doctrine"). This strand originated in Buttes Gas and applies to cases "where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter." Para. 43 (quoting Shergill v. Khaira  AC 359).
Critically, however, Lords Mance, Neuberger, and Sumption agreed that each strand of the foreign act of state doctrine was subject to a public policy exception and that the exception should apply in these cases. (Lord Mance preferred to view the exception as a limitation on the ambit of the doctrine, but did not think the distinction between ambit and exception was critical. Para. 89.) Thus, Lord Mance wrote: "The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorized. Act of state is and remains essentially a domestic law doctrine, and it is English law which sets its limits. English law recognizes the existence of fundamental rights, some long-standing, others more recently developed." Para. 98. Lord Neuberger similarly reasoned that, "assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply." Para. 168. And Lord Sumption said that the foreign act of state doctrine could not be applied to detention and torture because both "exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century." Para. 278.
Differences in Approach Among the Judgments
Despite their agreement on the most important aspects of the case, there were some notable differences in approach. Lord Mance thought that "[t]he concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry." Para 11(ii). For him, too much generalization "blurs the distinctions between different types of foreign act of state" and "impedes the important task of identifying the scope and characteristics of each type of foreign act of state." Para. 40. Lord Sumption was more inclined to generalize: "It is always possible to break down the cases into different factual categories, and deconstruct the law into a fissiparous bundle of distinct rules. But the process is apt to make it look more arbitrary and incoherent than it really is. I think that it is more productive to distinguish between the decisions according to the underlying principle that the court is applying." Para. 227. Lord Sumption's approach made him somewhat less likely to insist on all of the limitations to the act of state doctrine that might be found in past cases, for example the limitation of the territorial strands of the act of state doctrine to rights in property. See para. 231.
In approaching the question of public policy, the judgments also laid different emphases on domestic and international law. Lord Mance preferred to look "to individual rights recognized as fundamental by English statute and common law, rather than to tie them too closely to the concept of jus cogens." Para. 107. Lord Neuberger agreed that the public policy exception should "depend ultimately on domestic law considerations," but added that "generally accepted norms of international law are plainly capable of playing a decisive role." Para. 154. Lord Sumption, on the other hand, looked primarily to whether international law had been violated in deciding whether to apply the public policy exception, see paras. 249-80, though even he acknowledged that "the influence of international law does not mean that every rule of international law must be adopted as a principle of English public policy." Para. 257.
The three reasoned judgments also took different views on the relevance of foreign act-of-state decisions. Lords Mance and Sumption each discussed the US cases at length, see paras. 47-56, 209-212, as well as cases from Germany, France, and the Netherlands, see paras. 67-72, 201. Lord Mance cautioned that US law was "not necessarily transposable to English law," para. 57, but also said "we should be unwise not to take the benefit of it." Para. 57 (quoting Buttes Gas and Oil Co. v. Hammer (No. 3)  AC 888). Lord Sumption disapproved of the flexible US approach expressed in Sabbatino, see para. 212, without mentioning the US Supreme Court's more recent decision in Kirkpatrick, which is rather less flexible. He seemed to prefer the "instructive" approach of the French and Dutch courts. Para. 201. But Lord Neuberger advised "great caution before relying on, let alone adopting, the reasoning of foreign courts in connection with the Doctrine." Para. 133. He found the US decisions "to be of very limited assistance." Para. 134.
Act of State as International Comity
One thing that all three judgments agreed on, however, was that the act of state doctrine is a doctrine of domestic rather than international law. Drawing a distinction with state immunity, Lord Mance noted early in his judgment that "foreign act of state in most if not all of its strands has been developed doctrinally in domestic law." Para. 7. Lord Neuberger wrote that "the Doctrine is purely one of domestic common law." Para. 118. And Lord Sumption added that "[t]he act of state doctrine . . . does not reflect any obligation of states in international law." Para. 261. As I have noted in other writing, the act of state doctrine is a doctrine of international comity rather than international law. I wrote there (p. 2077) that international comity "describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries."
The fact that a particular doctrine is based on international comity does not mean that it must give a decisive role-or indeed any role-to the executive branch; many comity doctrines, from the conflict of laws to the enforcement of foreign judgments to the doctrine of forum non conveniens, are administered entirely by courts (pp. 2132-40). With respect to the act of state doctrine, one US Court of Appeals has recognized an exception allowing the executive to waive the doctrine, see Bernstein v. Nederlandsche-Amerikaansche, 210 F.2d 375, 376 (2d Cir. 1954), but the US Supreme Court has never approved it and has rejected a broader role for the executive in determining when the doctrine applies. See W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405, 408-09 (1990). Before we leave the three judgments in Belhaj, it is worth noting that each of them rejected the possibility that the act of state doctrine should apply whenever the Foreign Office indicated that the case would embarrass the United Kingdom in the conduct of its foreign relations. Lord Neuberger was willing to list this as his "possible fourth rule," para. 124, but found "little authority to support the notion that the fourth rule is part of the law of this country." Para. 132. Allowing the executive to dictate to the judiciary, he thought, "would be quite unacceptable." Para. 149. Lord Mance similarly saw "little attraction in and no basis for giving the Government so blanket a power over court proceedings." Para. 41. And Lord Sumption felt that allowing the act of state doctrine to turn on the degree of embarrassment to the government "would not be consistent with the accepted principles governing the relations between the courts and the executive in England." Para. 212.
The fact that a particular doctrine is based on international comity does mean that each country is free to shape the doctrine as it thinks best. Whether one feels that it is instructive to look to the experiences of other countries or not, the simple fact is that the act of state doctrine is quite different in different countries. In contrast to the United Kingdom, the United States does not recognize a non-territorial strand of the act of state doctrine and limits the doctrine to "the official act of a foreign sovereign performed within its own territory." W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics, Intern., 493 U.S. 400, 405 (1990). On the other hand, the US version of the doctrine has no public policy exception; if the act of state doctrine applies, a US court must accept its validity "[h]owever offensive to the public policy of this country" it may be. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). Still, it seems likely that US courts would not recognize fundamental violations of human rights as acts of state to begin with. See Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995) ("we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state"). These differences among nations make the act of state doctrine a fascinating topic for comparative study. They also reinforce the point that the act of state doctrine is one of international comity rather than international law.