Monday, October 23, 2006

Postscript to Tobias' Introduction

I have been absent from the blogosphere for quite some time now, and apologise to anyone who may have visited this site time and again, only to find that nothing had been posted to it. (I don't know if anyone did)

This is not without reasons: I have recently taken up LL.M. studies at the University of Edinburgh, and was (a) quite busy finding my way around (b) quite busy socially (well, I am a fresher - freshman, to our American readers - again...), and (c) British Telecom took their time in arranging internet access for my flat.

My latest post, No. 3 in a line of posts begun much too long ago, is below. There may be more coming in the next few days, depending on the speed of my research.

The Act of State Doctrine: In Violation of International Law? (Part 3)

In Part 3 of my series of posts on justiciability and the right of access to a court, I now come to the act of state doctrine, having considered the political question doctrine and the state secrets doctrine in earlier posts, all after having set the scene with some remarks on the relevant rules of international human rights law.

I now repeat very briefly some of those introductory remarks: I concluded that Article 14 (1) (2) ICCPR implied a right of access to a court in much the same way that Article 6 (1) ECHR does (as to which see Golder v. United Kingdom, at para. 26-40). Accordingly, Article 14 demands that all disputes involving a person’s ‘rights and obligations’ be capable of submission to judicial settlement, or else that any dismissal in such a case be justified in accordance with the implicit requirements of the right of access, viz. the proportionate application of rules of law pursuing a legitimate aim.

But now on the doctrine itself:

The act of state doctrine prevents American courts – ‘federal and state courts alike’ (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964); Kirkpatrick v. Environmental Tectonics Corp., 493 U.S. 400, 406 (1990)) – from ‘declar[ing] invalid the official act of a foreign sovereign performed within its own territory’ (Kirkpatrick, supra, at 405). Such an act ‘becomes (…) a rule of decision’ (Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)), so that an American court faced with it must treat it as valid. Accordingly, the jurisdiction of the court to make any decision on the foreign act of state is not ousted by the doctrine; all the doctrine does is to determine the result which the court must take as established, namely the validity of the foreign act of state. The doctrine may therefore be described as ‘an immunization ratione materiae’ (Thomas H. Hill, ‘Sovereign Immunity and the Act of State Doctrine. Theory and Policy in the United States’, RabelsZ 46 (1982), pp. 118, 123).

This means that the doctrine is by no means identical to the rules of state immunity under international law, which do go to the jurisdiction of a court over a foreign state and its actions. This is also shown by the fact that the doctrine can operate where a state, which has itself been sued for its acts before an American court, has waived its immunity from legal process; the doctrine would even then prevent the court from finding an act of that state invalid (Hill, ibid.).

This is because the act of state doctrine does not depend for its validity on the rules of state immunity, or even on related considerations. As the US Supreme Court has explained,

‘The act of state doctrine does (…) 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.’

(Sabbatino, supra, at 423). The doctrine therefore addresses ‘an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425), in that it prevents the courts from ever denying the validity of the acts of a sovereign state, and reserves this matter entirely to the other branches.

It remains unclear whether the doctrine applies also to the commercial of a foreign state, and whether the executive can ‘waive’ the monopoly afforded to it by the doctrine by declaring that in a specific case, it has no objections to denying validity to the foreign act of state (see Kirkpatrick, supra, at 404-405, citing opinions by two Justices affirming these exceptions, but refusing to decide the questions).

The fact that the doctrine does not, as I said, go to the jurisdiction of the courts generally, but constitutes ‘a rule of decision’ (Ricaud, supra, at 310) and an ‘immunization ratione materiae’ (Hill, supra), raises the first question in the examination of the doctrine under the international legal right of access to a court. This is whether the doctrine forms part of procedural or of substantive law.
If it is essentially a rule of substantive law, it negatives any ‘rights and obligations’ that private persons might otherwise hold in relation to the validity of acts of foreign states, i.e. the rights which such persons may claim to have been violated by a foreign state. Accordingly, the right of access to a court, which requires that such ‘civil rights and obligations’ be present, would not apply (see Z and Others v. United Kingdom, at paras. 87, 100).
If it is a rule of procedural law, this reasoning would not apply, and the right of access would be applicable. Any dismissal would therefore infringe the right, and require justification.

So, does the doctrine annihilate any rights that US law might otherwise grant in relation to foreign acts of state, or does it only prevent the courts from giving effect to US law in a manner that would lead them to declare a foreign act of state invalid? (Note that this is without prejudice to the – very reasonable – point that a right that is unenforceable in court is not really worth very much)
The answer appears to be that the doctrine belongs to procedural law. It is based on the constitutional role of the courts, rather than on any question relating to the substantive law. In content, it in effect renders the foreign act of state immune, if only from negative decisions of the courts. It thus goes to the court’s jurisdiction to make such a negative decision (see also Patrick W. Pearsall, ‘Means/Ends Reciprocity in the Act of State Doctrine’, Columbia Journal of Transnational Law 43 (2004-2005), pp. 999 et seq.), and is therefore substantive only in the sense that the courts will not dismiss for want of subject-matter jurisdiction, but for failure to make a substantive case. However, the substantive right as such remains unaffected, and may conceivably be taken up by the executive. If the rights did not remain extant, and the courts did, for example, recognize the substantive validity of any foreign act of expropriation, then such property rights would have been found to have been lawfully removed by the law of the foreign state, and the executive would face embarrassment when taking up the proprietors’ claim. This would obviously be directly contrary to the intendment of the doctrine.
It follows that, even if the doctrine applies, there remains a question of substantive law – and, possibly, of a person’s ‘rights and obligations.’

It might be noted, however, that there is a problem of translation here. It could be argued that in the understanding prevalent in common law jurisdictions, law exists only insofar as it can be applied by the courts, and that, consequently, any immunity may well be regarded as removing the rights otherwise to be protected by court proceedings. This would be a corollary of the court-centred nature of the common law system, in which, technically, the law does not give rights but grants actions (see e.g. Stig Strömholm, ‘The Tension between Human Rights and Responsibilities’, Juridical Review (2004), pp. 13, 15; see also R (Al-Rawi & Ors) v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, at para. 146, per Laws LJ).
Thus, to give some examples, the exclusion of all actions in nuisance (a tort) in relation to the noise from Heathrow Airport was accepted by the ECtHR as removing the potential claimants’ ‘civil rights’ (Powell and Rayner v. United Kingdom, at para. 36), whereas conversely, the inability of the police to commit a certain tort in English law (as a point of substantive law) is often described as an ‘immunity’ (see for criticism of this terminology Barrett v. London Borough of Enfield [2001] 2 AC 550, per Lord Browne-Wilkinson; this terminology was misunderstood by the ECtHR in Osman v. United Kingdom, at paras. 135-140, as a procedural immunity, in an error acknowledged by the Court in Z and Others v. United Kingdom, supra, at para. 100).
Accordingly, any exclusion of all remedies in court in a common law jurisdiction may fall to be interpreted as affecting the substantive law, and therefore as removing all otherwise existing ‘rights and obligations.’ However, this does not account for the reasoning set out above as to why the reasons behind the doctrine must make it a rule (only) of procedural law.

If my understanding is correct, then there is an infringement of the right of access to a court where a case is dismissed under the act of state doctrine.

This again brings us to the question of justification.

As already stated, such justification is not available on the grounds of compliance with the commands of public international law, since the doctrine does not rest on international grounds. But, while this is true as a general point, there may be cases where the application of the doctrine leads to a result required by the rules of state immunity ratione materiae – although this would mean that the court in question has failed to see the relevance of state immunity, since, as an issue of jurisdiction, it would otherwise have logically arisen before the act of state doctrine. In such a case, justification would certainly be available.

In all other cases, justification of the infringement of the right of access to a court would depend on the acceptability or otherwise of the reasons behind the doctrine. The fact that the doctrine reflects the domestic constitutional arrangements as to the separation of powers, taken by itself, cannot be determinative, as I have previously argued with respect to the political question doctrine: the right of access to a court predetermines one aspect of the separation of powers by demanding that all disputes involving a person’s ‘rights and obligations’ be, absent justification, be capable of adjudication. Any conflicting domestic arrangement would merely create the background for future violations of the right, but would fail to affect the judgment in international law.
However, such an arrangement may be pursuing a legitimate aim and striking a correct balance between the reasons behind it and the right of an individual to have his or her cases heard and determined in court (such are the requirements of justification under the right of access: see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72).

The act of state doctrine ‘arises out of the basic relationships between branches of government in a system of separation of powers’ (Sabbatino, supra, at 423). It reflects ‘a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425)’, and may therefore be said to recognize that the executive is more suited to handling issues of international importance than are the courts. That the presence of sensitive issues in international relations is a good reason for being cautious in granting access to adjudication may have some support in the jurisprudence of the ECtHR: see Al-Adsani v. United Kingdom, Concurring Opinion of Judge Pellonpää, in fine (although this relates to caution in applying international law correctly). This may also be borne out by references by the ECtHR to the state’s margin of appreciation in immunity cases (see e.g. Fogarty v. United Kingdom, at para. 39): while it cannot be within that margin to pretend that the act of state doctrine is as such commanded by international law, there may be grounds for applying a broad margin of appreciation to all areas of international concern. After all, it may be for related reasons that the – Soering-type – prohibition of extradition applies only where there is a risk of severe mistreatment in the receiving state. Similarly, the prohibition on the recognition of foreign judgments resulting from an unfair trial may be said to be limited to cases of flagrant disregard of fair trial standards precisely because of the presence of international interests (see Drozd and Janousek v. France and Spain, at para. 110; but see also Pellegrini v. Italy, at paras. 40-8, where no such limitation was mentioned or applied).

However, this concept of the executive being more capable of handling international issues is a far-reaching one, and the limitations imposed on the right of access to a court must never be such as to ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72). Clearly, any blanket immunity therefore creates particular problems (see Osman v. United Kingdom, at para. 151; Fogarty v. United Kingdom, Dissenting Opinion of Judge Loucaides).
But then, it is also to be noted that the act of state doctrine is somewhat flexible in content (see e.g. Sabbatino, supra, at 427-428; Kirkpatrick, supra, at 409), even if it might be argued that it is of constitutional stature, and may therefore not be altered even by an Act of Congress (as has been argued by Helen Kim, ‘Comment: The Errand Boy’s Revenge: Helms-Burton and the Supreme Court’s Response to Congress’s Abrogation of the Act of State Doctrine’, Emory Law Journal 48 (1999), pp. 305 et seq.; see also Pearsall, supra, at pp. 1012-3). Thus, for example, ‘the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it’ (Sabbatino, supra, at 428); the extent of possible embarrassment for the executive branch will also be relevant (Pearsall, supra, at p. 1006). This may well save the application of the doctrine in many cases from falling foul of the right of access to a court.

In sum, the act of state doctrine does, in my view, create serious problems under the right of access to a court inherent in Article 14 (1) (2) ICCPR, but its flexibility may leave the courts sufficient lee-way to strike a justifiable balance between the public interest in leaving sensitive areas of foreign relations law to the executive and the human rights of people approaching the court for settlement of their grievances.