Act of State Doctrine by Alfonso Iglesias

According to the act of state doctrine, national courts must refrain from prosecuting the validity of official acts carried out by a foreign state within its own territory, except if it commits violations of international norms with broad consensus of international society, such as, for example, a case of genocide. Both its judicial self-restraint character and its reflection in the judicial deference to the executive branch would justify the ex officio application of the act of state doctrine by the courts. This doctrine is neither a rule nor a legal obligation required by international law, although it arises from the relevance of the international rule of territorial sovereignty of the state. It was not introduced by a constitutional or legislative provision, but is a common law principle developed mainly by Anglo-Saxon jurisdictions on the basis of considerations of international comity, respect for the principles of sovereign equality and non-intervention in the internal affairs of other states, separation of powers, and the choice of law freedom. To some extent, the legal basis of the doctrine of immunity for acts of state was analogous to the basis of immunity granted to the foreign sovereign state and its agents. The underlying rationale of this doctrine consists in preventing domestic courts from issuing adverse judgments against foreign governments that could embarrass international relations and interfere with the conduct of foreign affairs by the executive branch power. The doctrine of the act of state (and that of the political question) has important differences with the immunity of the foreign state: (1) This immunity is per se a general rule of public international law of a customary nature accepted and applied universally—in addition to being regulated in various international conventions, one of them of universal vocation—unlike the doctrines cited, which are not regulated by national legislations or by international codification efforts. (2) The moment of operation is also different, since the immunity of the foreign state functions ex ante as a procedural exception to the exercise of jurisdiction by the court of the territorial state (or court of the forum), which for that reason is obliged to recognize its lack of competence to try the case before it, while the doctrines of the state act and the political question act later—only if the defendant does not enjoy immunity—when the court is already exercising its competence and knowing the merits of the case. (3) The application of the immunity of the foreign state requires that the foreign state be sued before the courts of the forum, whereas the act of state doctrine does not require that the foreign state itself be a party to the proceedings, but it is sufficient to question the validity of an internal act of the foreign state during the judicial proceedings.

General Overviews

There are a number of works that provide a general overview of the act of state doctrine. Quadros and Dingfelder Stone 2013 describes the delimiting profiles of the doctrine and its historical development in American and British jurisprudence. Webb 2018 explains that the sovereign independence of the state and the obligation not to intervene in the internal affairs of other states take the form of recognition by each of the acts of other states adopted within their respective jurisdictional spheres. Rambaud 1995 understands this theory as an Anglo-American jurisprudential approach to the possible judicial review of foreign law, not based on international law but on the courtesy between nations and the desire of the judiciary not to interfere in the governmental execution of foreign policy. Fox 1992 analyses how the act of state doctrine has been applied by the US Supreme Court in an evolutionary rather than uniform way, parallel to the progression of international law itself, and bets on an integrated conflict analysis. Whisker 2003 studies the historical conceptual development of this doctrine, how its scope has been restricted with the emergence of various exceptions, and other related aspects, such as the Foreign Sovereign Immunities Act (FSIA), the Alien Tort Claims Act (ATCA), genocide and war crimes, the presidential control of foreign relations, and the expropriation of property. Holstein 1997 deals with all aspects of this doctrine in the United States systematically: its traditional jurisprudential evolution and the modern version since the Sabbatino Decision and its aftermath; its legal basis from the various possible approaches, and the interpretation made by various courts of appeals; the qualification of the various acts of foreign sovereign states, such as the definition of the “public act”; the principle of territoriality in this doctrine, with examples of judicial practice; exceptions to the doctrine; and the relationship of this doctrine to other connected areas, such as state immunity or the ATCA. Stern 2006 also relates the concepts of immunities—of the foreign state and its agents—and the theory of the act of state: their differences, interactions, and common evolution toward a more restrictive application of both, in order to improve the protection of essential norms of international law. Gordon 1977 also studies the relationship between the two concepts, which were much more similar in origin, but which later developed differentiated features. Perreau-Saussine 2007 considers as an act of state doctrine the barrier used by English courts not to prosecute the actions of the British government in its overseas territories. Although we believe that this refers to the doctrine of the political question, it is common among some authors to mix the two concepts and use them interchangeably. Harrison 2016 points out how the act of state doctrine lacked hermeneutical precision during its historical evolution.

• Fox, Gregory H. “Reexamining the Act of State Doctrine: An Integrated Conflicts Analysis.” Harvard International Law Journal 33.2 (1992): 521–569. This article is a stimulating starting point for understanding the different perspectives from which to approach the act of state doctrine. Would it make more sense simply to apply the ordinary rules of conflict of laws in certain lawsuits rather than applying the act of state doctrine? Is this doctrine more problematic than valuable?
• Webb, Philippa. “International Law and Restraints on the Exercise of Jurisdiction by National Courts of States.” In International Law. 5th ed. Edited by Malcolm D. Evans, 316–348. Oxford: Oxford University Press, 2018. The author frames the act of state doctrine as one of the limitations that national courts have on the exercise of their jurisdiction, together with the immunity of the foreign state and the doctrine of non-justiciability. After explaining them, she compares them with each other and makes a brief reference to the arguments for and against these avoidance techniques.
• Gordon, David. “The Origin and Development of the Act of State Doctrine.” Rutgers Camden Law Journal 8.4 (1977): 595–616. This article takes a very interesting look at the development of the act of state doctrine, particularly with the milestones of American jurisprudence. The author explains the differences and similarities between this doctrine and the immunity of the foreign state, suggesting a common origin and that both concepts converge in a rational and comprehensive rule of American foreign relations law.
• Harrison, John, “The American Act of State Doctrine.” Georgetown Journal of International Law 47.2 (2016): 507–571. This article offers a very complete and clear overview of the act of state doctrine, which it defines as a rule of choice of law. The purpose is for courts, in the decision of their judicial proceedings, to assume that acts of foreign states adopted on their territory have the intended legal effect.
• Holstein, Miriam. “Act of State im US-Amerikanischen Recht: Eine Doktrin vor dem Zerfall?” Münster, Germany: Münster Lit, 1997. This work, a doctoral thesis, is a complete and critical analysis of all aspects relating to the evolution of the act of state doctrine in the United States. Likewise, its systematic organization facilitates the reader to obtain a comprehensive knowledge on this subject.
• Perreau-Saussine, Amanda. “British Acts of State in English Courts.” British Yearbook of International Law 78 (2007): 176–254. DOI: 10.1093/bybil/78.1.176 This article provides an extensive study of how the English courts have applied what the author calls the doctrines of the act of state to British government actions in their overseas territories. The article serves to see the rationale used by English courts to justify the non-justiciability of such governmental acts.
• Quadros, Fausto de, and John Henry Dingfelder Stone. “Act of State Doctrine.” In The Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Oxford: Oxford University Press, 2013. This article is extraordinarily useful for a first approach to the act of state doctrine. The authors focus on the object of study, set its definition, and clarify its scope. They also explain its historical evolution, the general rule, and its exceptions. The authors highlight the similarities and differences in the application of this doctrine between the United States and the United Kingdom, whose jurisdictions are responsible for its relevance.
• Rambaud, Patrick. “International Law and Municipal Law: Conflicts and Their Review by Third States.” In Encyclopedia of Public International Law. Vol. 2. 2d ed. Edited by Rudolf Bernhardt, 1202–1206. Amsterdam: North-Holland, 1995. This article focuses on whether a domestic court can review the validity in international law of foreign national law—for example, legislation concerning the expropriation and nationalization of private property—so that it can refuse to apply it if it contravenes international legal rules. For this purpose, the author analyzes the jurisprudence and the varied doctrine on the subject.
• Stern, Brigitte. “Immunités et doctrine de l’Act of State: Différences théoriques et similitudes pratiques de deux modes de protection des chefs d’État devant les juridictions étrangères.” Journal du Droit International 133.1 (2006): 63–87. This article explains the concepts of the immunities of the foreign state and its agents, as a procedural obstacle to the exercise of jurisdiction by national courts, and the act of state doctrine, as a self-limitation of a domestic court to examine the merits of a dispute concerning the validity of acts of a foreign state adopted within the framework of its sovereign competence and on its territory.
• Whisker, James B. The Supremacy of the State in International Law: The Act of State Doctrine. Lewiston: Edwin Mellen Press, 2003. This book offers a useful and comprehensive overview of the act of state doctrine. After defining it, the author devotes himself to explaining its evolution, from its origins in English common law, and in the early American cases to the Sabbatino case. It then goes on to describe the exceptions that have gradually limited its scope, for which it analyzes various related aspects.

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