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Table of Contents
                            I Introduction
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 i...
2. The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the court of jurisdiction over the appellants (the defendants in the proceedings), combined with applications for dismissal of the relevant c...
II The claimants’ allegations
3. Both cases originate with events in February/March 2004. In Belhaj, Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife, Mrs Boudchar, a Moroccan national, attempted (under, it seems likely, other names) to take a commercial ...
4. Mr Belhaj and Mrs Boudchar allege that the United Kingdom procured this detention in all these places “by common design with the Libyan and US authorities”. They allege that they suffered mistreatment amounting to torture at the hands of US agents ...
5. Upholding Simon J on the point, the Court of Appeal held, and it is now accepted, that all the claims depend upon proof that torts such as those alleged existed under the laws of the places where they were allegedly committed (subject only to any c...
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...
7. The appellants’ case in both proceedings is that the issues now before the Supreme Court are inadmissible or non-justiciable on their merits by reason of principles governing state immunity and/or foreign act of state. More specifically, the appell...
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 Atto...
9. On the other hand, in our concurrently delivered judgment, we have accepted that the doctrine of Crown act of state is available in respect of the United Kingdom’s detention and transfer to United States custody of Mr Rahmatullah. In these circumst...
10. First, one can understand why there is no plea of Crown act of state in respect of the allegations of severe mistreatment inflicted on the various respondents by various foreign state authorities. Further, in the cases of Mr Belhaj and Mrs Boudcha...
III Summary of conclusions
11. For the reasons which I shall set out, I have reached the following conclusions:
	(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 adva...
	(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,...
	(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 jurisdi...
		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...
		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 int...
		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...
		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 ow...
	(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 worl...
		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 f...
	(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...
IV State immunity
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 p...
13. Section 1 of the 1978 Act provides:
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 na...
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 take...
16. The appellants submit that the immunity is wide enough to cover cases such as the present where it is integral to the claims made that foreign states or their officials must be proved to have acted contrary to their own laws, before any claim agai...
17. Some uncertainty exists about the appropriate classification of the undoubted immunity which exists in relation to proceedings directed against state officials for acts done in their official capacity, in circumstances where the state itself would...
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 belongin...
19. United States of America v Dollfus Mieg et Cie SA was concerned with property, but in a very different context. The Bank of England held for safe custody 64 numbered bars of gold which had in 1944 been forcibly and wrongfully removed by German tro...
20. Lord Radcliffe faced squarely the problem that title was what was in issue, saying:
21. Lord Radcliffe resolved the problem by reference to the three states’ possessory rights as bailors of the goods to the Bank of England, concluding at pp 618-619 that:
22. Addressing an argument that Dollfus Mieg could avoid the problem by limiting itself to a claim in conversion for damages, Lord Radcliffe found the point one of considerable difficulty, but in the end concluded that a claim on this basis was also p...
23. It seems clear that Lord Radcliffe viewed the facts in Dollfus Mieg as close to the outer parameters of state immunity. Ultimately, the decision focused on the existence of a bailment, and on the second order consequences for the three States’ and...
24. The special treatment in section 6(4) of the State Immunity Act 1978 of claims against third parties in respect of property cases also suggests that such cases represent a particular head of immunity, based on a state’s possession or control of or...
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...
25. The appellants rely on the words “interests or activities” in article 6(2)(b) which, they submit, indicate that state immunity should be understood as extending beyond claims affecting property or other rights. The Convention is not yet in force, ...
26. The drafting history locates article 6 firmly in the context of the case law concerning the arrest of vessels, such as The Parlement Belge, and property in which states claim an interest, such as Dollfus Mieg: see eg the Report of the Internationa...
27. Reliance was also placed by the appellants on two decisions of the International Court of Justice, the first the Case of The Monetary Gold removed from Rome in 1943 (judgment of 15 June 1954) ICJ Reports 1954, P19 and the second the Case concernin...
28. The same applies to the East Timor case. By United Nations Resolution 1514 of 15 December 1960, East Timor was under Portuguese administration as a non-self-governing territory. Following internal disturbances in 1975, the Portuguese authorities w...
29. 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 act...
30. Some consequences of the appellants’ case are also worthy of note. The present proceedings in which they are sued as ancillary parties would be incapable of being maintained in this jurisdiction against them or against the states (Malaysia, Thaila...
31. For the reasons given, I consider that the issues now before the Supreme Court do not attract state immunity, because the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where suc...
V Foreign act of state
32. The starting point of the appellants’ case is that adjudication of the issues now before the court in favour of the claimants would necessarily involve a finding by the English courts that foreign states had acted illegally under the laws of the p...
33. In the opening words of his introduction to the chapter entitled The Foreign Act of State in his book Foreign Affairs in English Courts (1986), Dr Francis Mann wrote that:
34. Happily, there is a very substantial measure of common ground within the Supreme Court about the broad framework or structure of the relevant principles. Addressing briefly at this point such differences as there are between Lord Sumption and myse...
VI Three types of foreign act of state
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 norma...
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...
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 Catter...
38. Second, it has been held that a rule exists whereby an English court will not question a foreign governmental act in respect of property situated within the jurisdiction of the foreign government in question. The Court of Appeal in Princess Paley ...
39. In Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The “Playa Larga” and “Marble Islands”) [1983] 2 Lloyd’s Rep 171, the Court of Appeal was concerned with unlawful conduct involving theft by Cuban sellers of one cargo of sugar, p...
40. Third, it is established at the highest level that there are issues which domestic courts should treat as non-justiciable or should abstain from addressing. The Court of Appeal in Yukos v Rosneft understood this principle as “not so much a separat...
41. The Court of Appeal in Yukos v Rosneft suggested at para 65 that the third type might be allied with a yet further doctrine, precluding United Kingdom courts from investigating any acts of a foreign state when and if the Foreign Office communicate...
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 su...
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 determi...
	(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...
	(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 la...
44. The appellants propose a different categorisation, pursuing a theme pointed up by Rix LJ in Yukos v Rosneft (No 2) and by the Court of Appeal in Belhaj. According to this categorisation, a domestic court will not adjudicate upon any sovereign or j...
45. Whatever typology be adopted, the appellants submit that both cases now before the Supreme Court fall into one or both of the second and third types of foreign act of state, properly understood, and that, in so far as they fall within the third ty...
VII Analysis of the case law
	(i) Carr v Fracis Times & Co
46. Carr v Fracis Times & Co falls squarely within the first type of foreign act of state. The seizure of ammunition was lawful because the Sultan of Muscat was an absolute ruler whose word and proclamation were law in that state. The only possible hi...
	(ii) The United States authorities
47. In relation to the first and second types of foreign act of state, the Court of Appeal in Luther v Sagor and Princess Paley Olga drew heavily on United States authority, particularly Underhill v Hernandez 168 US 250 (1896) and Oetjen v Central Lea...
48. A precursor of Underhill v Hernandez is Hatch v Baez (1876) 7 Hun 596, where the claimant sought to sue a former president of the Dominican Republic, now resident in New York, for injuries allegedly suffered as a result of acts done by the former ...
49. In Underhill v Hernandez, Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Under...
50. The words which I have italicised open the possibility that the ratio of Underhill v Hernandez may be limited to state detention in war-time situations. The recognition in that context by United States courts of what was effectively a right to det...
51. In Oetjen, animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser from t...
52. Subsequent consideration of these and other similar cases by the United States Supreme Court in Ricaud v American Metal Co Ltd 246 US 304 and Banco Nacional de Cuba v Sabbatino 376 US 398 (1964) evidences a shift in their rationalisation. Like Oet...
53. The Court explained its own view of act of state as follows (p 423):
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 p...
55. The issues in Kirkpatrick were held not to turn “upon the effect of official action by a foreign sovereign” (p 406). An unsuccessful under bidder sued the successful bidder for a Nigerian construction contract under United States anti-racketeering...
56. The Supreme Court also addressed instructively the relationship between the considerations underlying the doctrine of foreign act of state and its application:
	(iii) Buttes Gas v Hammer
57. The reasoning and nuances of United States law have not been constant and are not necessarily transposable to English law. This was also expressly recognised by Lord Wilberforce in Buttes Gas at p 936F-G. However, he drew support from reasoning in...
58. Lord Wilberforce’s treatment earlier in his speech of foreign act of state in the more limited senses of the first and second types is instructive. Speaking of the category of cases exemplified by Carr v Fracis Times & Co, Luther v Sagor and Princ...
He said that Mr Littman (counsel for Dr Hammer and Occidental) had given the House
59. Without more, Lord Wilberforce then simply identified two suggested limitations, one that foreign legislation “can be called in question where it is seen to be contrary to international law or to public policy”, the other that “foreign legislation...
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 ...
61. Blad v Bamfield is sometimes treated, on the basis of the report of the first hearing of the case (p 603), as a claim by English traders, Bamfield and others, against Peter Blad, a Dane, for wrongful seizure of their goods in Iceland for allegedly...
62. However, a different picture emerges from the report of the second hearing before Lord Nottingham a year later in chancery. It then became clear, first, that the claim “relates to a trespass done upon the high sea” (p 605), and second that
63. In Duke of Brunswick, the King of Hanover was sued for sovereign acts in respect of which it is clear that he had sovereign immunity (once the submission was rejected that he was acting in his private capacity as an English subject). But, drawing ...
VIII Application of the first and second types of foreign act of state
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 generalis...
65. I turn therefore to consider the second type of foreign act of state. This has direct support at Court of Appeal level: para 38 above. But other support for it in English law is noticeably limited, and it is in my opinion unnecessary on this appea...
66. The commentary in Dicey, Morris and Collins goes on to indicate that sub-rule (2) covers both Crown act of state and foreign act of state. In relation to Crown act of state, Dicey, Morris and Collins makes clear that it contemplates acts against p...
67. Looking elsewhere abroad for assistance on this aspect, German law treats foreign confiscatory acts of state as falling outside normal conflicts principles and subject to special rules. Based on the territorial principle (Territorialitätsprinzip) ...
68. First, in a judgment with wide significance delivered on 23 April 1991, the principles stated in the previous paragraph were held by the German Federal Constitutional Court (Bundesverfassungsgericht or “BVerfG”) to be consistent with fundamental p...
69. Second, in an impressively reasoned judgment of 7 January 2005 (1 W 78/04), the Hanseatisches Oberlandesgericht Hamburg elaborated the conceptual basis of the same principles. The claim was by a Zimbabwean farmer, whose harvest had allegedly been ...
70. While the principle applied in this case parallels the second type of foreign act of state in a property context, there does not appear to be any authority accepting a similar principle of foreign act of state in German law outside a property cont...
71. For completeness, both cases are also of interest as indicating the existence under German law of a doctrine along the lines of Crown act of state. Thus in the Vavarin Bridge case, the BVerfG acknowledged that certain foreign and defence policy de...
72. Lord Sumption refers briefly in para 201 of his judgment to dicta in French and Dutch authority as suggesting a principle very similar to his view of the English act of state doctrine. It is, however, necessary to put such authority in context. Al...
	(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 regi...
	(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...
	(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 ...
	(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 Hunga...
	(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 c...
	(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 sovereignt...
73. That the second type of foreign act of state is, assuming that it exists, subject to significant limitations under English law has become increasingly clear over recent years. The Court of Appeal was on any view correct in Yukos v Rosneft to ident...
	(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:
	(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...
	(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 for...
	(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 enoug...
74. The recognition by the Court of Appeal in (in particular) Princess Paley Olga of the second type of foreign act of state was not challenged on the present appeal, and I am, as I have said, content for present purposes to proceed on that basis, bec...
75. In the United States, as I have noted, Hatch v Baez was and Underhill v Hernandez could have been, and would today certainly be, resolved by reference to state immunity. Whether, even in the United States, the reasoning in Underhill v Hernandez sh...
76. It is only in particular situations, like the present, that foreign act of state of the second type could conceivably be relevant. I see no reason to extend the doctrine (assuming the second type to exist at all) to cover such situations. On the c...
77. The appellants submit in response to this last point that foreign act of state would cease to be an objection to English proceedings against the appellants as secondary parties, if and when the respondents had successfully established the relevant...
78. In the upshot, therefore, in relation to the second type of foreign act of state, I consider that Leggatt J was correct in paras 115 and 177 of his judgment in Rahmatullah to treat the “traditional foreign act of state doctrine”, by which I unders...
79. Similar reasoning applies in Belhaj, with regard to any reliance on the second type of foreign act of state. The claims are all for physical detention or rendition or mistreatment and so, I would hold, outside the second type. Those for mistreatme...
80. The Court of Appeal in Belhaj dealt with the issues before it on a different basis, by recognising a public policy exception unrestricted by any need for the facts relied upon to be indisputable or undisputed. Had I regarded the second type of for...
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] FCACA 12; (2010) 265 ALR 50. It saw this, rightly in my view, as based on two...
82. The Australian High Court returned to this theme in Moti v The Queen 245 CLR 456 in a context which has resonance in the present appeals. Mr Moti claimed that he had been deported by officials of the Solomon Islands Government from the Solomon Isl...
83. There remains the question what considerations could as a matter of public policy require the English court to investigate and adjudicate upon an issue if and to the extent that this would otherwise be impermissible on the ground that it constitut...
84. For these reasons, I do not consider that the issues now before the Supreme Court fall within the second type of foreign act of state, assuming this to exist in any form, or that it should not proceed to trial for that reason.
IX Application of third type of foreign act of state
85. In the light of the above, the critical issue becomes the scope of the third type of foreign act of state. On this, the Courts below adopted different approaches. The Court of Appeal in Belhaj, paras 53-55, drawing on the analysis of the Court of ...
86. The critical limitation identified by the Court of Appeal in Belhaj at paras 83-87 and 114 (and in Yukos v Rosneft at para 69) was the public policy limitation identified in Oppenheimer v Cattermole and the Kuwait Airways case. Those were both cas...
87. The facts in Belhaj are in dispute. They are neither indisputable nor obvious. On its approach to foreign act of state and to the Kuwait Airways case, the Court of Appeal in Belhaj saw itself as faced with an exception to the foreign act of state ...
88. Leggatt J in contrast understood the third type of foreign act of state as a principle of non-justiciability limited to cases where the issues were genuinely “political” in one of the two senses mentioned in Shergill v Khaira. I understand by this...
89. In my view, Leggatt J was correct in Rahmatullah to approach the claims on the basis that the question is whether the principle of non-justiciability constituting the third type of foreign act of state applies at all, rather than whether any excep...
90. It is clear from Buttes Gas that the application of the third type of foreign act of state is fact- and issue-sensitive; it needs to be considered on a case by case basis in the light of the issues involved. There is, in this context, no reason wh...
91. As to the Court of Appeal’s conclusion (paras 67-68) that this Court’s judgment in Shergill v Khaira should not be understood as limiting the third type of act of state to situations of “lack of judicial competence arising from the separation of p...
92. The appellants submit that Leggatt J took too large a view of the issues properly justiciable in a domestic court. In particular, having held that there were judicial and manageable standards to resolve the issues in Rahmahtullah, and dismissed in...
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 Appe...
94. It would seem to follow from this and from para 163 of Leggatt J’s judgment that, if the claimant had had some substantive claim (eg for damages in his father’s or his own right), the claim would, in Leggatt J’s view, have been justiciable. In my ...
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, whethe...
96. However, even if Leggatt J took too limited a view in this respect of the circumstances in which domestic courts should exercise self-restraint and abstain, I have little difficulty with the result he reached on the facts as alleged and assumed fo...
97. I would accept that detention overseas as a matter of considered policy during or in consequence of an armed conflict and to prevent further participation in an insurgency could in some circumstances constitute a foreign act of state, just as it m...
98. 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 authorised. Act of state is and remains essentially a domestic law doctrine, and...
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. Bu...
100. These observations are together sufficient to support a conclusion that Mr Rahmatullah’s claims against the Ministry of Defence and the Foreign and Commonwealth Office are not, as presented, barred by reason of the doctrine of foreign act of stat...
101. Turning to Belhaj, on the assumed facts, this appeal too cannot in my view be regarded as raising any issues of a sovereign, international or inter-state nature upon which a domestic court cannot or should not appropriately adjudicate. Simon J at...
102. Essentially, what is relied upon by the appellants is the fact that they were not, while various foreign states were, the prime actors in the alleged false imprisonment, rendition or mistreatment. Bearing in mind the nature and seriousness of the...
103. Some reliance has been placed in both sets of proceedings on evidence about the effect on international relations of investigation in English courts of the issues which they raise. The appellants have relied in both sets of proceedings on evidenc...
104. Leggatt J in Rahmatullah thought it wrong for a court to become involved in attempting to resolve this sort of issue, and declined to attach weight to the evidence. Simon J in Belhaj reached with hesitation his conclusion that foreign act of stat...
105. The courts are placed in a difficult situation when asked to feed into a judgment about justiciability an assessment of the likely prejudice to the United Kingdom’s good relations and security interests with a foreign state, if serious allegation...
106. Lord Sumption takes a more general view of the third type of foreign act of state (non-justiciability or abstention or, in his terminology, international law act of state). But in paras 249-280 he argues in favour of the recognition in English do...
107. Such difference in approach as there is between Lord Sumption and myself in this area makes no difference to the outcome of these appeals, and seems unlikely to make much if any difference to the outcome of any trial. But I prefer to analyse the ...
	(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 ab...
	(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 ...
	(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 iden...
	(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 approp...
	(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 ...
X Miscellaneous points
108. It follows from my above conclusions that it is unnecessary to reach any final determination upon the respondents’ case that, in so far as what is alleged amounts to complicity in torture, the United Nations Convention against Torture (Treaty Ser...
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 s...
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 sub...
111. In either case, if article 6 was engaged, the question would then have arisen whether it rendered impermissible any reliance on either state immunity or foreign act of state. But, in view of what I have already decided, it is unnecessary to go fu...
XI Overall Conclusion
112. As indicated in para 11(vi) above, it follows from the reasoning and conclusions on the issues of state immunity and foreign act of state set out above, that the appeals in both Belhaj and Rahmatullah should in principle be dismissed - although b...
113. These two appeals involve allegations that the defendants, in their capacity as officials or emanations of the executive arm of the government of the United Kingdom, facilitated the claimants’ unlawful detention, and ill-treatment (and, in the ca...
114. Mr Belhaj and Mrs Boudchar allege that the defendants assisted United States and Libyan officials in their unlawful kidnapping and detention, their unlawful rendition (accompanied by ill-treatment), and their subsequent incarceration and torture ...
115. As the two claims are against UK government officials and entities, and not against any foreign government officials or entities, there is no question of any relief being sought other than against domestic defendants. Nonetheless, various points ...
116. So far as the doctrine of state immunity is concerned, I agree that it cannot assist the defendants for the reasons given by Lord Mance in paras 12-31 above and by Lord Sumption in paras 181-197 below. There is nothing that I can usefully add to ...
117. The doctrine of foreign act of state (“the Doctrine”) raises more troubling issues.
118. In summary terms, the Doctrine amounts to this, that the courts of the United Kingdom will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states, and it applies to claims which, while not made against the fore...
119. Another problem of relying on what was said in most of the earlier cases which have been cited to us in relation to the Doctrine is that the legal basis for a judicial decision that a claim could or would not be resolved by a court was not expand...
120. It appears to me that the domestic cases, to which we have been referred, suggest that there may be four possible rules which have been treated as aspects of the Doctrine, although there is a strong argument for saying that the first rule is not ...
121. The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state.
122. The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state.
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 su...
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 ...
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 va...
126. Another example of the first rule is Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532, where at p 549 Warrington LJ said that the English courts could not “ignore and override legislative and executive acts of the Government ...
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 l...
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 meani...
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) Sharja...
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 permissi...
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 (...
132. There is little authority to support the notion that the fourth rule is part of the law of this country, save that, as discussed in the Court of Appeal’s judgment in Kuwait Airways, paras 340-350, there are certain areas (such as the recognition ...
133. While other jurisdictions may have developed analogous principles to some or all of the four rules, it seems to me that courts in this jurisdiction should exercise great caution before relying on, let alone adopting, the reasoning of foreign cour...
134. While they were cited with approval in this jurisdiction (most notably by Bankes, Warrington and Scrutton LJJ in Luther v Sagor at pp 541-542, 550-551 and 557, by Scrutton and Sankey LJJ in Princess Paley Olga at pp 724-725 and 728-729 and by Lor...
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...
136. I find aspects of the second rule in relation to property and property rights more problematical. In so far as the executive act of a state confiscating or transferring property, or controlling or confiscating property rights, within its territor...
137. However, in so far as the executive act is unlawful according to the law of the territory concerned, I am not convinced, at least in terms of principle, why it should not be treated as unlawful by a court in the United Kingdom. Indeed, if it were...
138. However, I am not persuaded that there is any judicial decision in this jurisdiction whose ratio is based on the proposition that the second rule applies to a case where the state’s executive act was unlawful by the laws of the state concerned. T...
139. There is support for the notion that the second rule does not apply to executive acts which are not lawful by the laws of the state concerned in Dicey, Morris and Collins on The Conflict of Laws, (15th ed (2012)) which at p 1380 sets out Rule 137...
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...
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 th...
142. Having said that, there is pragmatic attraction in the argument that an executive act within the state, even if unlawful by the laws of that state, should be treated as effective in the interest of certainty and clarity, at least in so far as it ...
143. The question whether the second rule exists in relation to executive acts which interfere with property or property rights within the jurisdiction of the state concerned, and which are unlawful by the laws of that state, is not a point which need...
144. There is no doubt as to the existence of the third rule in relation to property and property rights. Where the Doctrine applies, it serves to defeat what would otherwise be a perfectly valid private law claim, and, where it does not apply, the co...
145. I believe that this is reflected in observations of Lord Pearson in Nissan. Immediately after the passage quoted in para 123 above, he said “Apart from these obvious examples, an act of state must be something exceptional. Any ordinary government...
146. In Yukos v Rosneft, para 66, Rix LJ suggested that “Lord Wilberforce’s principle of ‘non-justiciability’ … has … to a large extent subsumed [the act of state Doctrine] as the paradigm restatement of that principle”. If the foreign act of state pr...
147. Having said that, I accept that it will not always be easy to decide whether a particular claim is potentially subject to the second or third rule. The third rule may be engaged by unilateral sovereign acts (eg annexation of another state) but, i...
148. As already mentioned, there will be issues on which the position adopted by the executive, almost always the Foreign Office, will be conclusive so far as the courts are concerned - for instance, the recognition of a foreign state, also the territ...
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 Affa...
150. Having discussed the four possible rules which may be said to fall under the umbrella of the Doctrine, it is appropriate briefly to identify the characterisation of the various rules. I agree with Lord Mance that the first rule is a general princ...
151. The third rule is based on judicial self-restraint, in that it applies to issues which judges decide that they should abstain from resolving, as discussed by Lord Mance in paras 40-45 and by Lord Sumption in paras 234-239 and 244. It is purely ba...
152. I turn now to discuss the limitations of, and exceptions to, the Doctrine. The cases establish that there are limitations and exceptions, each of which apply to some or all of these three or four rules. Many of those limitations and exceptions we...
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 incons...
154. The circumstances in which this exception to the Doctrine should apply appear to me to depend ultimately on domestic law considerations, although generally accepted norms of international law are plainly capable of playing a decisive role. In his...
155. The point is also apparent from the opinion of Lord Hope. At para 139, he said that “the public policy exception” is not limited to cases where “there is a grave infringement of human rights”, but is “founded upon the public policy of this countr...
156. The exception to the Doctrine based on public policy has only been considered by the courts in relation to the first of the four rules set out above. However, I cannot see grounds for saying that it does not apply similarly to the second rule, ex...
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 Secreta...
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...
160. Assuming that the second rule can apply to executive acts in relation to property which are unlawful by the laws of the state in which it occurred, I am unconvinced that it would apply in such a case in so far as the act resulted in injuries to t...
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 ac...
162. In a case where neither the first nor the third rule applies, it seems to me that there is force in the point that, as a matter of elementary justice, if a member of the executive of a foreign state injures a claimant physically in the territory ...
163. So far as the cases are concerned, the first, second and third rules have only been applied in relation to acts within the territory of the state concerned. I find it hard to see how it could be argued that the first rule, which is concerned with...
164. Further, a location outside the relevant territory would be in the territory of another state, and normal principles, including the first rule, would indicate that the laws of that other state will normally apply. It is therefore hard to see how ...
165. The position with regard to territoriality seems to me to be less clear so far as the third rule is concerned. As Rix LJ observed in Yukos at para 49, “[i]t is not entirely clear” from what Lord Wilberforce actually said in Buttes Gas whether wha...
166. Mr Belhaj and Mrs Boudchar contend that the defendants assisted US officials to kidnap, detain and torture them in Malaysia and Thailand, and to take them to Libya, in order for them to be detained and tortured there by Libyan officials. It is no...
167. In my view, at least on the evidence available so far, and in agreement with Lord Mance and Lord Sumption, the acts complained of by Mr Belhaj and Mrs Boudchar do not fall within the third rule. There is no suggestion that there was some sort of ...
168. Having said that, even if the third rule otherwise applied, I would still hold that this was a case where, assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply. In that connecti...
169. Given that the third rule does not apply, I consider that it is clear that the Doctrine cannot be relied on as against Mr Belhaj and Mrs Boudchar, and the first rule plainly does not apply. As to the second rule, I consider that it cannot be reli...
170. The position of Mr Rahmatullah is arguably a little more nuanced. Although I accept that there is an argument to the contrary, at the moment it does not seem to me that his treatment by the US authorities should be treated as having taken place w...
171. However, because the defendants were apparently acting pursuant to the MoU between the UK and US governments, there is an argument that, unlike in the case of Mr Belhaj and Mrs Boudchar, the third rule is engaged. I was initially inclined to thin...
172. In any event, even if that is wrong and the third rule was engaged, I consider that Mr Rahmatullah could rely on the public policy exception, essentially for the reasons given by Lord Sumption. To be held without charge or trial for ten years, pa...
173. Accordingly, I would dismiss the defendants’ appeals in so far as they contend that the courts below held that their defences of state immunity and foreign act of state in each of the two actions must be rejected.
174. We agree with the reasoning and conclusion in the judgment of Lord Neuberger. The defences of state immunity and foreign act of state do not apply at all in the two cases before us. This is also the conclusion reached by Lord Mance for essentiall...
175. These appeals raise questions of some constitutional importance concerning the ambit of the act of state rule. They arise from allegations that British officials were complicit in acts of foreign states constituting civil wrongs and in some cases...
176. Yunus Rahmatullah is a national of Pakistan. He was detained in Baghdad in February 2004 by British forces, on suspicion of being a member of Lashkar-e-Taiba, a terrorist organisation based in Pakistan with links to Al-Qaeda. At the time of his d...
177. Mr Belhaj is a Libyan national. In 2004 he was the leader of the Libyan Islamic Fighting Group, an organisation opposed to the government of Colonel Gaddafi, which is alleged to have been a terrorist organisation at the relevant time. He led an a...
178. Both claims were pleaded by reference to English law. But it is now common ground that any liability in tort is governed by the law of the countries where they occurred, ie successively Malaysia, Thailand and Libya, and (in respect of what happen...
179. It is important to draw attention to the limited character of the issues presently before the Court. The allegations of fact summarised in the two preceding paragraphs are taken from the pleadings. They are no more than allegations. None of them ...
180. In Belhaj, Simon J held that there was no state immunity but that the claims were barred as being based on foreign acts of state. He rejected the argument that this outcome was inconsistent with article 6 of the Convention. The Court of Appeal af...
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...
182. In the United Kingdom, effect was given to the rule of international law by the common law for some three centuries before it became statutory with the enactment of the State Immunity Act 1978. Section 1(1) of that Act provides that “a state is i...
183. As a matter of both international and domestic law, the categorisation of an act as sovereign depends on its character, not its purpose or underlying motive: see Playa Larga (Owners of Cargo lately laden on board) v I Congreso del Partido (Owners...
184. By this standard there can be no real doubt that the acts alleged against the relevant foreign governments in these cases were sovereign acts, whether they were lawful or not. If Malaysia, Thailand, Libya and the United States had been sued, they...
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 ...
186. The second case comprises actions in which a state, without being a party, is said to be “indirectly impleaded” because some relevant interest of that state is directly engaged. In England, the only cases in which a foreign state has been held to...
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 ...
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.
188. The principle that a state is impleaded by proceedings against its property is, however, based on more than the technicalities of Admiralty procedure. It reflects the broader rule that if the relief claimed would directly affect a foreign state’s...
189. In United States of America v Dollfus Mieg et Cie SA [1952] AC 582, gold bars had been looted by German troops in 1944 from a French bank which was holding them for Dollfus Mieg & Cie. They were recovered by allied forces in Germany and lodged wi...
190. Similar issues arose in Rahimtoola v Nizam of Hyderabad [1958] AC 379. The Nizam sued the former High Commissioner of Pakistan in the United Kingdom, who had received a sum of money paid out of the Nizam’s account by a signatory during the Indian...
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 u...
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...
191. In these cases, English and international law treated a claim against a state’s property as tantamount to a claim against the state. The appellants argue that the true rationale of this rule is broader than this. It is, they submit, that a state ...
192. In support of the first point, the appellants rely on two decisions of the International Court of Justice, Monetary Gold Removed from Rome (1954) ICJ Rep, p 19 and East Timor (Portugal v Australia) (1995) ICJ Rep, p 90. The jurisdiction of the In...
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 sinc...
193. As the Court pointed out in Monetary Gold (p 32), the underlying principle is that a court “can only exercise jurisdiction over a state with its consent.” But the point about both of these cases was that the decision would have involved an exerci...
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 Co...
195. Article 6 of the Immunities Convention provides:
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 “intere...
196. The essential point about the property cases is that they have the potential directly to affect the legal interests of states notwithstanding that they are not formally parties. In the case of an action in rem, this is obvious. The court’s decisi...
197. No decision in the present cases 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...
198. In Nissan v Attorney General [1970] AC 179, 211-212, Lord Reid observed:
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.
199. The act of state doctrine comprises two principles. The first can conveniently be called “Crown act of state” and does not arise in the present cases. It is that in an action based on a tort committed abroad, it is in some circumstances a defence...
200. Unlike state immunity, act of state is not a personal but a subject matter immunity. It proceeds from the same premise as state immunity, namely mutual respect for the equality of sovereign states. But it is wholly the creation of the common law....
201. The policy which the foreign act of state doctrine reflects does, however, have partial analogues in the municipal law of a number of civil law jurisdictions, subject in some cases to extensive public policy exceptions. The question has generally...
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; (1674) 3 Swan 604, although this view turns more on his expansive turns of phra...
Nottingham restrained Bamfield’s action at law on the ground that
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 o...
203. Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56 arose out of the East India Company’s controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. ...
204. Dobree v Napier (1836) 2 Bing NC 781 marked an important development of the law. It arose out of the civil wars of Portugal in the 1830s. The plaintiff’s steamship Lord of the Isles was captured on the high seas in 1833 while trying to run warlik...
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:
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 bl...
205. Duke of Brunswick v King of Hanover (1848) 2 HLC 1 marked another milestone in the development of this area of the law, not only in England but in the United States, where it would later serve as the point of departure for adoption of the foreign...
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 ...
206. Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22 was a case of Crown act of state. The question at issue was the lawfulness of the annexation of the princely state of Tanjore by the East India Company on behalf o...
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:
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 t...
He went on to say (pp 179-80) that it made no difference that the seizure was carried out by a British naval officer.
208. This was the state of English authority at the time when the foreign act of state doctrine was considered by the courts of the United States in a number of decisions which have proved influential on both sides of the Atlantic.
209. Although there are, as always, precursors in earlier dicta about related issues, the foreign act of state doctrine in the United States really begins with the decision of the Supreme Court of New York in Hatch v Baez 7 Hun 596 (1876). The issue a...
210. The issue first came before the Supreme Court in Underhill v Hernandez 168 US 250 (1897). This case arose out of another civil war, in Venezuela. General Hernandez had been the local commander of the revolutionary army which enabled Joaquin Cresp...
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 th...
211. In both of these cases, state immunity might have been raised, on the footing that Baez was a former head of state and Hernandez had been acting as an agent of the (subsequently) recognised government of Venezuela. But in both cases, the defendan...
212. These cases were decided at a time when the courts of the United States adopted an approach to foreign sovereign acts which was very similar to that adopted in England, and largely influenced by it. They proceed on the footing that the act of sta...
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 ...
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...
214. In Aksionernoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532, the stock of the plaintiffs’ timber mill had been confiscated by a decree of the Russian Republic in June 1918 and sold to the defendants, who subsequently imported it into ...
215. In Princess Paley Olga v Weisz [1929] 1 KB 718, the facts were similar except that the goods in question were works of art forcibly removed from the plaintiff’s palace at Tsarskoye Selo. The Court of Appeal again dismissed the claim. All three me...
216. In Regazzoni v KC Sethia (1944) Ltd [1958] AC 301, a contract for the sale of jute was held to be unenforceable because it involved the shipment of the cargo from India in breach of an Indian prohibition of exports to South Africa. The House of L...
Lord Keith of Avonholm, concurring, said at p 327:
217. Regazzoni v Sethia marked a return to concepts of non-justiciability canvassed a century before in the colonial annexation cases. The principal modern landmark in this area of the law is the important and much-debated decision of the House of Lor...
218. The House struck out the proceedings. The leading speech was delivered by Lord Wilberforce, with whom the rest of the Appellate Committee agreed. After rejecting the argument that the counterclaim was barred as being based on a claim to title to ...
219. Lord Wilberforce went on, at pp 931-932, to dismiss Occidental’s counterclaim as raising matters which were non-justiciable on wider grounds:
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 esc...
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 Hanove...
220. In applying this wider principle to the particular facts before him, Lord Wilberforce emphasised (p 938) that the issue before the House turned on questions of international law arising between states:
221. The detailed application of the principle formulated by Lord Wilberforce in Buttes Gas has often been disputed but the principle itself has not. It was restated by Lord Oliver in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (th...
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 3...
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 ...
224. Turning to the question of discretion, the Court of Appeal accepted that arguably the offences created by sections 44 to 46 of the 2007 Act did not require a finding that the US operators of the drone had committed murder, but only a finding that...
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, ...
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. Th...
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 matt...
227. As Lord Wilberforce observed in Buttes Gas, at p 930F-G, the main difficulty in identifying a principle underlying that law arises from the “indiscriminate use of ‘act of state’ to cover situations which are quite distinct and different in law.” ...
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 t...
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 be...
230. Thus it is well established that municipal law act of state applies not just to legislative expropriations of property, but to expropriations by executive acts with no legal basis at all. Examples include Duke of Brunswick v King of Hanover and P...
231. Once it is accepted that executive acts may be acts of state, there is no rational reason why the principle should be limited to executive seizures of property, as opposed to injury to other interests equally protected by the municipal law of the...
232. One might ask why an English court should shrink from determining the legality of the executive acts of a foreign state by its own municipal law, when it routinely adjudicates on foreign torts and foreign breaches of contract. The answer is that ...
233. It is this principle which applies to the alleged act of Malaysia in deporting Mr Belhaj and Mrs Boudchar, and Thailand’s act in detaining them and delivering them to the Americans. They were domestic exercises of governmental authority by those ...
234. The second principle, which can conveniently be called international law act of state, corresponds to the variety of foreign act of state identified in the judgment of Lord Mance at para 11(iii)(c). It is that the English courts will not adjudica...
235. Dicey, Morris & Collins on the Conflict of Laws, 15th ed (2012) write at para 5-049:
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...
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 ...
238. Subject to any public policy exception, it is this principle which applies to the acts alleged against United States officials in the present cases. In Rahmatullah, they were exercises of governmental authority by the armed forces and officials o...
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 ...
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 sovere...
241. There are many circumstances in which an English court may have occasion to express critical views about the public institutions of another country, without offending against the foreign act of state doctrine or any analogous rule of law. In depo...
242. In the present cases the question whether the acts alleged against the relevant foreign states were unlawful is not incidental. It is essential to the pleaded causes of action against the defendants in both actions. This is because the various ci...
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 regard...
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 decisio...
245. Shergill v Khaira was not an act of state case. The question was whether the court could entertain a claim to enforce the trusts of a religious charity, if that would require it to decide religious issues. It was argued that it could not do so, b...
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...
247. The proposition which the High Court of Australia accepted from Dr Mann is tantamount to the abolition of the foreign act of state doctrine. This was indeed a consummation devoutly wished by that great scholar. He regarded the whole doctrine as i...
248. The Court of Appeal took a different approach. They considered that while the facts of Buttes Gas might be analysed in terms of lack of judicial competence the act of state doctrine was not limited to such situations, even as applied to the trans...
249. The Court of Appeal described this as an exception to the ordinary immunity of foreign acts of state. It might equally have been described, as Lord Mance does, as a category of case to which the principle does not apply to begin with. The differe...
250. To say of a rule of law or an exception to that rule that it is based on public policy does not mean that its application is discretionary according to the court’s instinct about the value of the policy in each particular case. But rules of judge...
251. The standards which public policy applies in cases with an international dimension have changed a great deal in the past half-century. In Hatch v Baez, Underhill v Hernandez and Oetjen v Central Leather Co the US Supreme Court declined to conside...
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 14...
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 rec...
254. The question in Oppenheimer v Cattermole was whether the English courts should recognise a Nazi decree-law of 1941 which deprived Jews of their German nationality and confiscated their property if they were ordinarily resident outside Germany at ...
255. In Kuwait Airways, the House of Lords went further than Lord Cross had done. It held by a majority (Lord Scott dissenting) that in certain circumstances the municipal law of a state could be disregarded, even in its application to matters within ...
256. The leading speech was delivered by Lord Nicholls. Lord Steyn and Lord Hope agreed with Lord Nicholls, adding observations of their own on the exclusion of Resolution 369. Lord Hoffmann also agreed, adding observations on another point. Lord Nich...
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 “fundame...
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:
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...
259. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, the House of Lords held that notwithstanding the status of the prohibition of torture as jus cogens in international law, the United Kingdom was under no international law obliga...
Lord Hoffmann, concurring, said, at para 45:
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’...
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 ...
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...
261. I do not propose to re-examine that material once more, because the present question is not the correctness of the decision in Jones, but its relevance in the rather different context of the foreign act of state doctrine. In Jones, the absence of...
262. In my opinion, it would be contrary to the fundamental requirements of justice administered by an English court to apply the foreign act of state doctrine to an allegation of civil liability for complicity in acts of torture by foreign states. Re...
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 Cour...
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 governmen...
265. In Habib, the plaintiff had been arrested in Pakistan and successively detained there, in Egypt and at Guantanamo Bay. The allegation was that Australian officials aided and abetted officials of the various foreign states involved to torture him....
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
266. The purpose of the foreign act of state doctrine is to preclude challenges to the legality or validity of the sovereign acts of foreign states. It is not to protect English parties from liability for their role in it. In itself, that would not pr...
267. The Secretary of State submits that unless the facts are undisputed or indisputable, as they were in Kuwait Airways, the foreign act of state doctrine precludes any examination of the facts. In my view this submission fails to distinguish between...
268. I conclude that it would not be consistent with English public policy to apply the foreign act of state doctrine so as to prevent the court from determining the allegations of torture or assisting or conniving in torture made against these defend...
269. Article 9 of the Universal Declaration of Human Rights (1948) provides that “no one shall be subjected to arbitrary arrest, detention or exile.” The prohibition of arbitrary detention gives rise to problems of definition far more complex than tho...
270. These more or less speculative suggestions may indicate that the boundaries of arbitrary detention in international human rights law are not yet fixed. But it is clear that the irreducible core of the international obligation, on which there is a...
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.
271. The UN Working Group regarded this irreducible core as jus cogens: loc cit, para 49. In my opinion they were right to do so. It is fair to say that article 4 of the Covenant does recognise a limited right to derogate from its terms “in time of pu...
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 ...
273. I turn to rendition and enforced disappearance, both of which are aggravated forms of arbitrary detention.
274. Rendition is an archaic expression which was once more or less synonymous with extradition. The Oxford English Dictionary, in its Supplement for September 2006, defines “extraordinary rendition” as
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 internati...
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
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 Conv...
276. However, even in the absence of specific rules of international law relating to rendition and enforced disappearance, a prohibition of these practices is necessarily comprised in the more general prohibition of arbitrary detention by other intern...
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 E...
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...
278. In my opinion the foreign act of state doctrine cannot be applied to the detention alleged to have been inflicted on these claimants by US and Libyan officials, for substantially the same reasons as it cannot be applied to the allegations of tort...
279. The Torture Convention applies to both torture and “other cruel, inhuman or degrading treatment”, but it distinguishes between them. Article 1.1 of the Convention defines torture properly so-called. Article 2.2, which precludes derogations in any...
280. In these circumstances, it is difficult to regard the prohibition of ill-treatment falling short of torture as jus cogens. Nor does it engage the same fundamental considerations of English public policy which justify treating torture as an except...
281. The conclusion that I have reached on the ambit of the exceptions to the act of state doctrine means that article 6 is only marginally relevant to the present appeals. It could not apply to the detentions themselves. It could apply only so far as...
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 immunit...
283. The most pertinent illustration is Markovic v Italy (2006) 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 inter...
284. To the limited extent that the foreign act of state doctrine might apply in these cases, it does not in my opinion engage article 6.
Disposition
285. For these reasons I would declare (i) that the claimants’ claims are not barred by state immunity, and (ii) that on the facts pleaded the claimants’ claims are not barred by the foreign act of state doctrine so far as they are based on allegation...
                        
Document Text Contents
Page 1

Hilary Term

[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

Page 2

Appellants (Rt Hon Jack
Straw MP and 6 others)

Respondents (Belhaj and
another)

Rory Phillips QC Richard Hermer QC
Sam Wordsworth QC Ben Jaffey

Karen Steyn QC Maria Roche
Sean Aughey

(Instructed by The
Government Legal

Department)

(Instructed by Leigh Day)




Appellant (Ministry of
Defence and another)

Respondent (Rahmatullah)

James Eadie QC Phillippa Kaufmann QC
Karen Steyn QC Edward Craven

Melanie Cumberland
(Instructed by The
Government Legal

Department)

(Instructed by Leigh Day)




Respondent (Rahmatullah)
Richard Hermer QC
Nikolaus Grubeck
Maria Roche
(Instructed by Deighton

Pierce Glynn)



Interveners (UN Special
Rapporteur on Torture

and another)
Nathalie Lieven QC
Ravi Mehta
Shane Sibbel
(Instructed by Bhatt

Murphy Solicitors)



Interveners
Martin Chamberlain QC
Oliver Jones
Zahra Al-Rikabi
(Instructed by The Redress

Trust)


Interveners:-
(1) International Commission of Jurists
(2) JUSTICE
(3) Amnesty International
(4) REDRESS

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a term of art. Many of the judgments do not distinguish between what are now treated

as three separate doctrines, namely Crown act of state, foreign act of state, and state

immunity.

The rules identified in the cases

120. It appears to me that the domestic cases, to which we have been referred, suggest
that there may be four possible rules which have been treated as aspects of the Doctrine,

although there is a strong argument for saying that the first rule is not part of the

Doctrine at all, or at least is a free-standing aspect of the Doctrine effectively franked

by international law.

121. The first rule is that the courts of this country will recognise, and will not

which take place or take effect within the territory of that state.

122. The second rule is that the courts of this country will recognise, and will not

take place or take effect within the territory of that state.

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

examples are making war and peace, making treaties with foreign sovereigns, and

annexa - 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,

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an investigation would embarrass the government of our own country: but that this



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

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,

or the



126. Another example of the first rule is Aksionairnoye Obschestvo AM Luther v
James Sagor & Co [1921] 3 KB 532, where at p 549 Warrington LJ said that the English

nore and override legislative and executive acts of the Government

of Russia and its agents affecting the title to proper Bankes

LJ to the same effect at p 545). The first rule was also applied in Princess Paley Olga v

Weisz [1929] 1 KB 718 - -723, reflected

also in the judgments of Sankey and Russell LJJ at pp 730-732 and 732-736

respectively). The first rule was also invoked in Buttes Gas and Oil Co v Hammer (Nos

2 and 3) [1982] AC 8

-justiciable, because

the decree applied within the territory of Sharjah.

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

in Denmark -justiciable in English courts (emphasis added). Another example

is Dobree v Napier (1836) 2 Bing NC 781,

dispute the right of the Queen of Portugal to appoint in her own dominions the defendant

(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 -724, reflected in the judgments of Sankey

and Russell LJJ at pp 726-730 and 736 respectively).

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Other cruel, inhuman or degrading treatment

279.
1.1 of the Convention

defines torture properly so-called. Article 2.2, which precludes derogations in any

circumstances, applies only to torture as defined. The international obligation of states

is to prevent such acts within its jurisdiction. The Convention also imposes on states the

ancillary administrative and investigatory obligations laid down by articles 10, 11, 12

and 13 of the Convention. The international obligation upon states to assume universal

criminal jurisdiction over torture does not apply to the lesser forms of ill treatment. In

A v Secretary of State for the Home Department (No 2), supra, at para 53, Lord Bingham

acknowledged the significance of these differences:

-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



280. In these circumstances, it is difficult to regard the prohibition of ill-treatment
falling short of torture as jus cogens. Nor does it engage the same fundamental

considerations of English public policy which justify treating torture as an exception to

the foreign act of state doctrine. The practical consequences of this difference in cases

16. It may fall short of torture, either because it is insufficiently severe or because it is

not committed for one of the purposes specified in article 1 (obtaining information or a

confession, punishment, intimidation, coercion, or other reasons based on

discrimination). Given the breadth of the definition of torture, which extends to any

the wide range of motives which may lead to ill-treatment being classified as torture,



likely to be a very narrow one.

Article 6 of the European Convention on Human Rights

281. The conclusion that I have reached on the ambit of the exceptions to the act of
state doctrine means that article 6 is only marginally relevant to the present appeals. It

could not apply to the detentions themselves. It could apply only so far as the treatment

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of the claimants while they were detained amounted to cruel, inhuman or degrading

treatment but fell short of torture. I will therefore deal with it briefly.

282. Article 6 might in principle apply so far as the application of the foreign act of
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 (2012) 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

(2005) 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 (2006) 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



284. To the limited extent that the foreign act of state doctrine might apply in these
cases, it does not in my opinion engage article 6.

Disposition

285.
state immunity, and (ii) that on the

the foreign act of state doctrine so far as they are based on allegations of complicity or

participation in torture or in detention or rendition otherwise than by legal authority. I

would affirm the decision of the Court of Appeal in Belhaj that no part of the claim is

struck out.

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