Acts of State, State Immunity, and Judicial Review in the United States
| Author | Zia Akthar |
| Position | Sussex University |
| Pages | 205-234 |
Acts of stAte, stAte ImmunIty, And JudIcIAl RevIew
In the unIted stAtes
Zia Akthar*
Sussex University
ABSTRACT
The doctrine of the Act of State and State Immunity has its foundation in common law
frameworks. It is settled law that there is no cause of action that will make a foreign
state liable in the domestic court of another country. In the United States there has been
acceptance that certain cases involve “political questions” that are non-justiciable, as
they are not a “case or controversy” as required by Article III of the U.S. Constitution.
The courts have only intervened either where the federal statutes have applied extra-
territorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed
abroad by a company registered in the United States, or under the Alien Tort Claims Act
(ATCA) 1789, which protects foreign parties who are designated sufciently “alien”
for the sole purpose of invoking jurisdiction after a civil wrong has been committed
against them. There needs to be an evaluation of the U.S. Supreme Court precedents that
have asserted judicial oversight in respect of wrongs committed extra-territorially, and
their present rationale for retaining the doctrine. This paper also discusses the scope of
the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism
Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by
another state or its agents. A comparative analysis with the state immunity doctrine
in Canada and the framework for litigation under the merits-based approach by the
courts is provided. The common law courts have developed the doctrine of the Act of
State and it has become a principle of customary international law. The argument of
this paper is that there needs to be a greater focus on the civil injuries that are caused
in other jurisdictions that should allow the claimants to litigate in the forum court and
for judicial review to be available.
KEYWORDS
Sovereign immunity; Article III; judicial restraint; ATCA; territoriality principle;
JASTA; merits-based approach.
CONTENTS
Br. J. Am. Leg. Studies 7(1) (2018), DOI: 10.2478/bjals-2018-0006
© 2018 Zia Akthar, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* LLB (Lon), LLM (Lon), Gray’s Inn, Doctoral Candidate, Sussex University. The author
acknowledges with thanks the helpful comments of the anonymous reviewers of this article
and the considerable editorial assistance of members of the editorial team of the British
Journal of American Legal Studies
I. IntRoductIon ...............................................................................................206
II. unIted stAtes ............................................................................................207
A. Non-Justiciability and the Political Question Doctrine ...................... 207
B. Challenging the Executive Powers of State ........................................ 211
C. Constitutional Review of State Immunity ........................................... 214
7 Br. J. Am. Leg. Studies (2018)
I. IntRoductIon
International relations have been governed by the concept of sovereign immunity
of states which prevents litigation against them in foreign courts. This concept is
based on the doctrine of act of state which grants immunity from wrongdoing to
the state for any alleged breach of law. When pleaded in court, judges may deny the
private party’s cause of action against the invoking state. The existence of sovereign
immunity places an absolute bar on judicial review in the domestic courts and, in
the United States, is regarded as part of the doctrine of separation of powers. There
are statutory exceptions to the law of sovereign immunity when the Supreme Court
has review powers over external acts that give rise to a cause of action in U.S.
courts for breaches of duty in another country.
The protection for the state under both state immunity and “act of state”
doctrines protects individual states and their institutions from scrutiny where they
act unlawfully either together or in common with other states and impinges on the
ability of private individuals to secure redress. In the common law traditions, the
level of restriction on the traditional absolute theory of sovereign immunity has now
become the subject of national legislation. The United States was the rst to enact a
law in the form of the Foreign Sovereign Immunities Act of 1976, followed by State
Immunity Act 1978 in the United Kingdom, and in Canada the promulgation of the
Foreign State Immunities Act 1985.
The concept of state immunity is based on the common law process of legal
precedents developed by the courts. In England, the doctrine of “act of state” is
based on judicial restraint rather than constitutional competence. The case for
application of the doctrine is subject to close scrutiny and it has been qualied by
decisions in the courts that have recognized that non-justiciability is not an absolute
principle.1 The act of state doctrine’s origin in the United States was when cases
were initiated against ofcials of foreign governments and the personal immunity
of foreign sovereigns was established. It placed limitations on judicial review where
the courts respected the right of the executive to deny jurisdiction.
1 For a general description of the history and development of the act of state doctrine in the
United Kingdom, see Michael Singer, The Act of State Doctrine of the United Kingdom:
An Analysis with Comparisons to United States Practice, 75 Am. J. Int’l l. 283, 284-96
(1981).
D. Extraterritorial Jurisdiction and Tort Liability .............................216
E. Impact of JASTA on State Immunity ...........................................223
III. cAnAdA .............................................................................................. 227
A. Sovereign Immunity in Law .......................................................227
B. Merits-Based Approach ............................................................... 229
C. Liability of Foreign Countries for Terrorist Conduct ..................230
Iv. conclusIon ........................................................................................232
206
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