Act of State Doctrine

Note: for information on the application of the Act of State Doctrine, please see here.

Summary of Act Of State Doctrine

A principle of international law that holds that the actions of a state, performed within its own boundaries are not subject to legal review in other countries. Some limitations on the doctrine have arisen in recent years, largely in response to international conventions guaranteeing just treatment of individuals and private property. As a result of the doctrine, a state normally may not be sued in a foreign court without its consent. In response to wholesale expropriations of American property in Cuba in the early 1960s, U.S. law was amended by the so called HICKENLOOPER AMENDMENT (read this and related legal terms for further details), whereby U.S. courts were empowered to try cases to which a foreign state is a party whenever American property has been expropriated in violation of U.S. law. The jurisdiction of American courts over suits involving foreign states and state-owned enterprises was further expanded by the FOREIGN SOVEREIGN IMMUNITIES ACT (read this and related legal terms for further details). [1]

Bernstein v. Kerry: Act of State and Political Question Doctrines in 2013

United States views on international law [2] in relation to Bernstein v. Kerry: Act of State and Political Question Doctrines: On April 1, 2013, the United States filed a motion to dismiss in a case brought by Americans residing in Israel challenging the U.S. provision of foreign assistance to the Palestinian Authority and for the West Bank and Gaza. Among other things, plaintiffs’ complaint asserts that the U.S. government failed to comply with certain limits and requirements, including those relating to support for terrorism, in statutes authorizing foreign assistance to the Palestinian Authority and other organizations active in the West Bank and Gaza. The plaintiffs asked the U.S. District Court for the District of Columbia to grant mandamus relief compelling the U.S. government to seek recovery of these funds. The U.S. brief in support of its motion to dismiss presents three arguments:

“first, that the plaintiffs lack standing; second, that the case presents a political question; and third, that there is no mandamus jurisdiction or any other identified right of action. The excerpt below comes from the section of the brief on the political question doctrine. The brief in its entirety is available at (Secretary of State website) state.gov/s/l/c8183.htm. The U.S. reply brief is also available at (Secretary of State website) state.gov/s/l/c8183.htm. On August 26, 2013, the district court issued its opinion granting the motion to dismiss based on the plaintiffs’ lack of standing. Bernstein v. Kerry, 962 F. Supp. 2d 122 (D.D.C. 2013).”

Some Aspects of Bernstein v. Kerry: Act of State and Political Question Doctrines

Plaintiffs’ claims in this action should also be dismissed as nonjusticiable pursuant to well established principles of the political question doctrine. The political question doctrine, the roots of which go back to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 (1803), counsels courts to abstain from ruling on questions properly reserved to the political branches of government. The Supreme Court has set forth the following formulation for determining whether an issue constitutes a political question:

“Prominent on the surface of any case held to involve a political question is found”

• a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
• a lack of judicially discoverable and manageable standards for resolving it; or
• the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
• the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
• an unusual need for unquestioning adherence to a political decision already made; or
• the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Foreign Policy

Baker v. Carr, 369 U.S. 186, 217 (1962). For the doctrine to apply, the Court “need only conclude that one [Baker] factor is present, not all.” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). While not every case that touches on foreign affairs presents a political question, those which challenge Executive Branch foreign policy determinations do:
“[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex and involve large elements of prophecy. . . . They are decisions of a kind for which the Judiciary has neither the aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

Details

Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); accord Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C. 2010) (“An examination of the specific areas in which courts have invoked the political question doctrine reveals that national security, military matters and foreign relations are ‘quintessential sources of political questions.’” (quoting El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)). Whether a question is justiciable turns on whether it presents a legal question or a policy question that turns “‘on standards that defy judicial application.’” Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012) (quoting Baker, 369 U.S., at 211). The questions that Plaintiffs seek to litigate in this case, to the extent that they have any meaningful content, are foreign policy questions that are constitutionally committed to the political branches and for which there are no judicially manageable standards.

Second guess policy decisions

Plaintiffs seek to have this Court second guess policy decisions to provide, and the manner in which the Government provides, foreign assistance to the Palestinian Authority and for the West Bank and Gaza. But these determinations are quintessentially policy-based determinations of the kind that are committed to the political branches. See, e.g., People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C. Cir. 1999) (holding that whether a particular organization “threatens the security of the United States” is not justiciable because “it is beyond the judicial function for a court to review foreign policy decisions of the Executive Branch”).

As described above, Congress has set forth certain conditions relating to foreign assistance to the Palestinian Authority and for the West Bank and Gaza, but those conditions charge the President and U.S. Secretary of State with determining whether there is a factual basis to certify to conditions or to waive restrictions based upon an assessment of the national security interests of the United States. Many of the conditions on the provision of assistance for the West Bank and Gaza or the Palestinian Authority are contained in the annual appropriations act for the Department of State and the U.S. Agency for International Development, which Congress generally modifies and enacts each year. To the extent that Plaintiffs raise questions about the nature of the Palestinian Authority, such as whether it is actually a state, or whether it is controlled by HAMAS, these too are clearly determinations committed to the political branches. E.g., United States v. Pink, 315 U.S. 203, 229 (1942) (President’s recognition power is “not limited to a determination of the government to be recognized” but “includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy as well as objections to recognition are to be addressed to the political department and not to the courts.”).

United Nations Relief and Works Agency (UNRWA)

Finally, Plaintiffs’ challenge to foreign policy assessments such as whether the United Nations Relief and Works Agency (UNRWA) complies with the conditions on which the U.S. has provided contributions are similarly barred by the political question doctrine. The determination of what constitutes adequate steps and whether a foreign entity is meeting them are policy judgments for which there are no judicially manageable legal standards. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“policies in regard to the conduct of foreign relations [and] the war power . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (“The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—’the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”); Ange v. Bush, 752 F. Supp. 509, 513 (D.D.C. 1990) (“The judicial branch . . . is neither equipped nor empowered to intrude into the realm of foreign affairs where the Constitution grants operational powers only to the two political branches and where decisions are made based on political and policy considerations. The far reaching ramifications of those decisions should fall upon the shoulders of those elected by the people to make those decisions.”).

Bernstein v. Kerry: Act of State and Political Question Doctrines in 2013 (Continuation)

Continuation of United States views on international law [3] in relation to Bernstein v. Kerry: Act of State and Political Question Doctrines: Plaintiffs’ complaint makes clear that this suit is merely an “attempt to litigate [their] disagreement with how this country’s foreign policy is managed,” and such policy disagreements are properly resolved within the political branches, and are thus nonjusticiable. Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988). Plaintiffs, for example, complain that the U.S. Secretary of State could not have reached certain conclusions about the Palestinian Authority’s efforts to combat terrorism because, in Plaintiffs’ view, the Palestinian Authority has “not taken reasonable steps to arrest terrorists,” among other things. See Compl. ¶ 116. Assuming that the U.S. Secretary of State has reached a conclusion contrary to Plaintiffs’ view of the world, the judicial process is inherently ill-suited to the resolution of such disputes. Where, as here, the proper venue for the resolution of a disputes is in the political branches, the Court should dismiss the case as nonjusticiable.

The Act of State Doctrine Does Not Apply to the Corporate Conduct at Issue Here.

In relation to the international law practice and The Act of State Doctrine Does Not Apply to the Corporate Conduct at Issue Here. in this world legal Encyclopedia, please see the following section:

Foreign Relations

About this subject:

Act of State and Political Question Doctrines

Under this topic, in the Encyclopedia, find out information on McKesson v. Iran. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about the act of state doctrine. Iran argues that the act of state doctrine prohibits United States courts from adjudicating this dispute. See more about this issue in the Encyclopedia.

Doctrine of Act of State

‘This is to the effect that the courts of one state do not, as a rule, question the validity or legality of the offi cial acts of another sovereign state or the oficial or officially avowed acts of its agents, at any rate insofar as those acts involve the exercise of the state’ s public authority, purport to take effect within the sphere of the latter’ s own jurisdiction and are not in themselves contrary to international law’: I Oppenheim 365 and

366 . The classical, and founding, expression of this doctrine is that of Chief Justice Fuller

in Underhill v. Hernandez 168 U.S. 250 (1897) , 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’

The practice of States differs, and it may be concluded that customary international law

does not require a State to recognize the validity of acts of State of a foreign State: Anglo-

Iranian Oil Co. v. Jaffrate (1953) 20 I.L.R. 316 ; Anglo-Iranian Co. v. S.U.P.O.R. (1955) 22 I.L.R. 19 ; Anglo-Iranian Co. v. Idemitsu Kosan Kabushiki Kaisha (1953) 20 I.L.R. 305

But see Buttes Gas & Oil Co. v. Hammer [1982] A.C. 88 . In Banco Nacional de Cuba

v. Sabbatino 367 U.S. 398 (1964) , 428 the U.S. Supreme Court, in declining to pass upon

the legality of the Cuban sugar expropriation of 1960 , restated the doctrine: ‘rather than

laying down or reaffi rming an infl exible 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’. This decision prompted the so-called Hickenlooper amendment (or

Sabbatino amendment ) to the Foreign Assistance Act of 1961 (Pub.L. 87–195 75 Stat

444) (S. 620(e)(2) of the Act, as amended 22 U.S.C. 2370 (e)(2) ), providing that U.S

courts are not to decline to render a decision giving effect to the principles of international

law in property claims, based on confi scations after 1 January 1959 , by an act in violation

of the principles of international law. See sovereign immunity .[1]The rule that officials or agents (or former officials or

agents) of a foreign State are immune from legal proceedings in respect of acts done by

them on behalf of the foreign State on the basis that, otherwise, any proceedings against

them would indirectly implead that State. This rule admits of exceptions, particularly in

respect of crimes against peace ( see peace, crime against ), war crimes and crimes

against humanity ( see humanity, crime(s) against ). Under art. 6 of the Statute of the

Nuremberg International Military Tribunals 1945 (82 U.N.T.S. 278) , liability extended

to ‘leaders, organizers, accomplices’ many of whom were, almost by defi nition, former

offi cials of the German State; ‘He who violates the laws of war cannot obtain immunity

while acting in pursuance of the authority of the State if the State in authorizing action

moves outside its competence under international law’: In re Goering and others (1946)

13 I.L.R. 203 at 221 and 222. See also the Rainbow Warrior Case (1990) 82 I.L.R. 500

The jurisdiction of the International Criminal Court stipulates for no defence based on

offi cial, or former offi cial, capacity: art. 27 of the Rome Statute of 17 July 1998 : 2187

U.N.T.S. 3 .[1]In U.K. constitutional law, ‘an act of the Executive as a matter of policy performed in

the course of its relations with another state, including its relations with the subjects of that

state, unless they are temporarily within the allegiance of the crown’ (Wade, Act of State

in English Law, (1934) 15 B.Y.I.L. 98 at 103): ‘an exercise of sovereign power’ which ‘cannot

be challenged, controlled or interfered with by municipal courts. Its sanction is not that

of law, but that of sovereign power, and, whatever it be, municipal courts must accept it, as

it is, without question’: Salaman v. Secretary of State for India [1906] 1 K.B. 613 at 639

per Fletcher Moulton L.J. Such a defence is not available against a British subject ( Nissan

v. Attorney-General [1970] A.C. 179 ), nor against any alien resident in British territory

( Johnstone v. Pedlar [1921] 2 A.C. 262 ).

Other Meaning

The term is sometimes used to connote acts attracting State responsibility . The International Law Commission ‘ s Draft Articles on State Responsibility 2001 ( [2001] II I.L.C. Yearbook 26 ) has a chapter (Chap. II, arts. 5–15) devoted to ‘The “Act of State” Under International Law’; and art. 12 declares that there is a breach of an international obligation by a State ‘when an act of that State is not in conformity with what is required of it by that obligation’. See Crawford , The International Law Commission ‘ s Articles on State Responsibility ( 2002 ), 159.[1]

Description of Act-of-state Doctrine

In this reference work, act-of-state doctrine is a sort of the International Law category.

Resources

Notes

1. by William J. Miller
2. Bernstein v. Kerry: Act of State and Political Question Doctrines in the Digest of United States Practice in International Law
3. Bernstein v. Kerry: Act of State and Political Question Doctrines in Digest of United States Practice in International Law

See Also

• International Law

Further Reading

1. The entry “act of state, doctrine of” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press
2. Linda J Pike, Encyclopedia of Disputes Installment, 1987