Good things come to those who wait. Today, some fourteen months after hearing the case, the Supreme Court has decided in Belhaj v Straw and Rahmatullah (No 1) (Respondent) v Ministry of Defence [2017] UKSC 3 that the Act of State doctrine does not bar a tort claim brought against the former Home Secretary, Jack Straw, for alleged complicity in unlawful detention of the claimants and mistreatment overseas at the hands of foreign state officials from the US and Libya. The appeal did not concern the separate claim in Rahmatullah relating to his detention by British forces and their handing him over to US forces, which had previously been dismissed under the Crown Act of State doctrine, assuming that arrest and detention were lawful under authorised UK policy.
State immunity was no bar to the two claims. Although the acts alleged against the relevant foreign governments were sovereign acts, and the governments would have been immune if sued, they had not been sued. Only the government and agents of the United Kingdom were sued and they accepted that state immunity was not available to them.However, the appellants argued that the claims were barred by the foreign act of state doctrine, a position rejected by the Court of Appeal [2014] EWCA Civ 1394. The Supreme Court unanimously upheld that decision and the first instance decision in Rahmatullah [2014] EWHC 3846 (QB).
Lord Mance identified three types of foreign act of state rule in English law.
– a 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 that state’s jurisdiction – a rule precluding a domestic court from questioning the validity of a foreign state’s sovereign act in respect of property within its jurisdiction, at least in times of civil disorder. Even if this rule extended more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts.
– a rule that a domestic court will treat as non-justiciable – or will refrain from adjudicating on or questioning – certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state. Non-justiciability falls to be considered on a case-by-case basis, having regard to the separation of powers and the sovereign nature of activities and will take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture as well as the international relations consequences of a court adjudicating on an issue. The circumstances here did not lead to a conclusion that the issues are non-justiciable.
Lord Sumption reached the same result by a different analysis of the foreign act of state doctrine. In his view there were two such doctrines: the municipal act of state doctrine which corresponded with Lord Mance’s first two categories; the international act of state doctrine which requires requires the English courts not to adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states. This is, however, subject to an exception where those acts involve violations of jus cogens norms of international law, such as the prohibitions on torture, arbitrary detention, and inhuman treatment falling short of torture which formed the basis of the allegations in the present cases.
