... or 'act of State' doctrine
This morning, the Supreme Court handed down its long awaited judgment in the combined appeals of Belhaj v Straw; Rahmatullah v Ministry of Defence  UKSC 3.
The first case, brought by the former Libyan opposition leader Abdul-Hakim Belhaj and his wife, Fatima Boudchar, alleges that UK Government officials were complicit in the couple’s rendition to Gaddafi’s Libya, where they were arbitrarily imprisoned and tortured. The second case was brought by Yunus Rahmatullah, who was detained by UK forces in Iraq before being handed over to US forces and allegedly tortured and imprisoned without charge for over ten years.
The appellants argued before the Court that the claims should be barred on the basis of state immunity, given that adjudicating on them would require the court to make findings that the conduct of foreign officials had been illegal. Relying on the concepts of “interests or activities” in Article 6(2)(b) of the 204 UN Convention on Jurisdictional Immunities of States and Their Property, the appellants argued that this amounted to an indirect impleading of the foreign states in question since their interests would be affected by such findings. However, this argument was unanimously rejected by the Supreme Court, which held that it must be shown that a legal interest of a foreign state would be affected.
Act of State doctrine
Although the Court was unanimous in its decision that the act of state doctrine did not apply, its members reached that conclusion by slightly differing routes. In broad summary, Lady Hale and Lord Clarke agreed with the substantive judgment of Lord Neuberger (thus creating a majority of four), although they also stated that they considered the reasons given by Lord Mance to be the same as those given by Lord Neuberger. Lord Neuberger also expressly adopted some of the reasoning of Lord Mance and Lord Sumption. There is also, in any event, a great deal of common ground between Lord Sumption’s judgment and those of Lord Mance and Lord Neuberger.
Lord Mance and Lord Neuberger were in broad agreement that a domestic court is not precluded from questioning the validity of a foreign state’s sovereign acts in respect of persons rather than property (what they called the second rule), unless the acts in question fall within the scope of a category of international transactions on the international plane the nature of which require the court to exercise restraint, such as the use of force by a foreign state for example (what they called the third rule). They further held that even if the second rule applied to persons as well as property, the acts complained of in these two cases would fall within the public policy exception.
For Lord Sumption, the act of state doctrine could be broken down into two rules: “municipal law act of state” and “international law act of state”. Lord Sumption’s definition of municipal law act of state is not limited to acts in relation to property, but is confined to the territory of the relevant foreign state. On the other hand, international law act of state applies where the question is the lawfulness of a state’s acts in its dealing with other states and their subjects, wherever the relevant act occurs. Lord Sumption held that the latter principle applies to acts alleged against the United States in both cases, but he went on to hold that they fall within the public policy exception on the basis that the prohibition on torture and rendition were jus cogens rules of international law and fundamental principles of English law. On the jus cogens status of the prohibition of arbitrary detention, Lord Sumption relied on the UN Working Group on Arbitrary Detention and Lord Mance referred to its 2012 Report as “most valuable and important” and “likely to influence the development of generally accepted and recognised norms”.
Martin Chamberlain QC, Oliver Jones and Zahra Al Rikabi (instructed by the Redress Trust) appeared pro bono for the International Commission of Jurists, JUSTICE, Amnesty International and REDRESS, intervening in relation to both the State immunity and act of State issues.
Mads Andenas, a door tenant, made written submissions as the Chair-Rapporteur of the UN Working Group on Arbitrary Detention, together with the Special Rapporteur on Torture.