“Any prisoners of war, civilian internees and civilian detainees transferred by a detaining power will be returned by the accepting power to the detaining power without delay upon request by the detaining power.”
“1. Whether the claimant’s claim, in so far as it seeks to establish either defendant’s liability in tort (however described) in respect of acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan, is barred by reason of (i) the doctrine of state immunity; and/or (ii) the doctrine of foreign act of state. 2. Whether the claimant’s claim for false imprisonment and/or detention without lawful justification by UK armed forces prior to his transfer to US custody in Iraq (see re-amended particulars of claim, dated25 July 2014 , at paragraphs 132 and 132.1), is barred by reason of the doctrine of Crown act of state.”
“1. Whether claims alleging liability of the defendant in tort in respect of alleged acts or omissions of US personnel while the claimant was in the custody of the United States of America are barred by the doctrines of state immunity and/or foreign act of state. 2. Whether claims in tort in respect of (a) the capture and detention of the claimant by UK armed forces and/or (b) the transfer of the claimant to the custody of the armed forces of the United States of America are barred by the doctrine of Crown act of state.”
“(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being- (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or elements of those events occurred.” (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or elements of those events occurred.”
“If the defendant avers that the relevant applicable law to any matter in the claim is Iraqi law, then it is for the defendant to prove any material difference between English law and Iraqi law. The claimant notes that the Iraqi Civil Code provides equivalent causes of action to those pleaded under English law.”
“… there will still be cases in which the application of English law, whether because the party seeking to have foreign law applied has pleaded foreign law but has failed to prove its content to the satisfaction of the court, or because the parties have tacitly agreed not to seek to prove the content of foreign law and have the lex fori applied by default, will be just too strained or artificial to be appropriate.”
“A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.”
“To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principles upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court.”
“The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages. The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control.”
“The writ by its express terms commands the defendants to appear or let judgment go by default. They are given the clear alternative of either submitting to the jurisdiction or losing possession. In the words of Brett LJ [in The Parlement Belge] the independent sovereign is thus called upon to sacrifice either its property or its independence.”
“A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property – (a) which is in the possession or control of a State; or (b) in which a State claims an interest, if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, if the claim is neither admitted nor supported by prima facie evidence.”
“There is, however, a wealth of authority to show that in such cases the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state’s right to immunity cannot be circumvented by suing its servants or agents.”
“It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”
“Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases …”
“A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention”
“Modalities for giving effect to State immunity (1) A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. (2) A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.”
“The proceedings to which the bar of immunity is extended by Article 6(2)(b) is very wide…”
“(11) Without closing the list of beneficiaries of State immunities, it is necessary to note that actions involving seizure or attachment of public properties or properties belonging to a foreign State or in its possession or control have been considered in the practice of States to be proceedings which in effect implicate the foreign sovereign or seek to compel the foreign State to submit to the local jurisdiction. Such proceedings include not only actions in rem or in admiralty against State-owned or State-operated vessels used for defence purposes and other peaceful uses, but also measures of prejudgment, attachment or seizure (saisie conservatoire) as well as execution or measures in satisfaction of judgment (saisie exécutoire). … (12) As has been seen, the law of State immunities has developed in the practice of States not so much from proceedings instituted directly against foreign States or Governments in their own name, but more indirectly through a long line of actions for the seizure or attachment of vessels for maritime liens or collision damages or salvage services. State practice has been rich in instances of State immunities in respect of their men-of-war, visiting forces, ammunitions and weapons and aircraft. The criterion for the foundation of State immunity is not limited to the claim of title or ownership by the foreign Government, but clearly encompasses cases of property in actual possession or control of a foreign State. The court should not so exercise its jurisdiction as to put a foreign sovereign in the position of choosing of being deprived of property or else submitting to the jurisdiction of the Court. (13) Sub paragraph (b) applies to situations in which the State is not named as a party to the proceeding, but is indirectly involved, as for instance in the case of an action in rem concerning State property, such as a warship. …”
“… the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.”
“In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio Juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of the right to exercise jurisdiction over foreign States.”
“It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to [a] court as embodied in article 6(1).”
“It was obviously necessary for the Strasbourg court to satisfy itself that the immunity accorded to the United States was in conformity with international law; contracting states cannot be permitted to circumvent the requirement of article 6(1) by adopting idiosyncratic rules of state immunity. But once the court accepted that the immunity claimed by the United States was in conformity with generally accepted norms of international law, I consider that the better course would have been to hold that the case fell outside article 6(1) altogether.”
“Based on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give. This was the opinion expressed by Lord Millett in Holland v Lampen-Wolfe[2000] 1 WLR 1573 , 1588, and it seems to me persuasive.”
“The doctrine of the foreign act of state displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of speculation.”
“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”
“The principle that the conduct of one independent government cannot be successfully questioned in the courts of another ... rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’”
“state immunity is a creature of international law and operates as a plea in bar to the jurisdiction of the national court, whereas the act of state doctrine is a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state.”
“A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. … but what we are concerned with here is legislation that takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all.”
“[T]hat the courts of one independent government will not sit in judgment on the validity of the acts of another done within its own territory … does not deprive the courts of jurisdiction once acquired over a case. It requires only that, when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction but is an exercise of it.”
“any other decision would be open to very serious questions of policy if, in every case where the lord of a country has declared what the law of his own country is, it were open to an English tribunal to enter into the question and to determine, as against him, what was the law of his country.”
“the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law.”
“Leaving aside all possibility of embarrassment in our foreign relations … there are … no judicial or manageable standards by which to judge these issues, or to adopt another phrase … the court will be in a judicial no-mans land …”
“Assuming that to be true, it still does not suffice. The act of state doctrine is not some vague doctrine of abstention but a ‘principle of decision binding on federal and state courts alike’. Sabbatino, supra, 376 US at 427. As we said in Ricaud, ‘the act within its own boundaries of one sovereign state … becomes … a rule of decision for the courts of this country’. 246 US at 310. Act of state issues only arise when a court must decide – that is, when the outcome of the case turns upon – the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine. That is the situation here. Regardless of what the court’s factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit and there is thus no occasion to apply the rule of decision that the act of state doctrine requires.”
“The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue.”
“The Court will in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence.”
“The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.”
“It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.”
“… The acts of private parties, however political, are subject to law. The actors are answerable to municipal courts of law having jurisdiction over them and applying objective, external legal standards.”
“Some issues might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable. The best-known examples are in the domain of public law. Thus, when the court declines to adjudicate on the international acts of foreign sovereign states or to review the exercise of the crown's prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the citizen is engaged whether in public or private law: R (Campaign for Nuclear Disarmament) v Prime Minister[2002] EWHC 2777 (Admin) ; R (El-Haq) v Secretary of State for Foreign and Commonwealth Affairs[2009] EWHC 1910 (Admin) . As Cranston J put it in the latter case, at para 60, there is no ‘domestic foothold’. But the court does adjudicate on these matters if a justiciable legitimate expectation or a Convention right depends on it: R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. The same would apply if a private law liability was asserted which depended on such a matter.”
“[State] practice shows that, whether in claiming immunity for themselves or affording it to others, states generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other states to respect and give effect to that immunity.”
“The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence.”
“The first rule is one which provides a defendant, normally a servant of the Crown, with a defence to an act otherwise tortious or criminal, committed abroad, provided that the act was authorised or subsequently ratified by the Crown. ... The second rule is one of justiciability: it prevents British municipal courts from taking cognisance of certain acts. The class of acts so protected has not been accurately defined: one formulation is ‘those acts of the Crown which are done under the prerogative in the sphere of foreign affairs’ ...”
“It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under [foreign] law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.”
“An act of state is something not cognisable by the court: if a claim is made in respect of it, the court will have to ascertain the facts but if it then appears that the act complained of was an act of state the court must refuse to adjudicate upon the claim. In such a case the court does not come to any decision as to the legality or illegality, or the rightness or wrongness, of the act complained of: the decision is that because it was an act of state the court has no jurisdiction to entertain a claim in respect of it.”
“It was no part of the peacekeeping function of the troops to take property without paying for it.”
“Internment for this purpose would clearly qualify as an act of state. My conclusion that act of state is a defence here does not go wider than this. It applies, in my judgment, because of the overriding force of UNSCR 1546. If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN to achieve its role in this regard, and this would be detrimental to the long-term interests of the states.”
“It is firmly established that international obligations do not become part of UK law unless specifically incorporated, and there would seem to be no basis for asserting that the UK courts should refuse to give effect to the national law of another state on the grounds that they are incompatible with international obligations undertaken by the UK.”
“where an act injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the government of this country, it becomes the act of the state, and the private right of action becomes merged in the international question which arises between our own government and that of the foreigner.”
“Liability of the Crown in tort. (1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:— (a) in respect of torts committed by its servants or agents; ... Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”
“It is thought that this proviso was inserted in order to make it plain that the Crown was to participate in the defence of ‘act of state’ that is open to the servant under the rule in Buron v Denman. But if this was the intention, the proviso used a bludgeon to kill a fly – and the fly was already dead, because where the servant has the defence of ‘act of state’ it cannot be said that he has committed a tort within the words of section 2(1)(a), and thus there is nothing for which the Crown could in any event be liable.”
“If an individual ratifies an act done on his behalf, the nature of the act remains unchanged, it is still a mere trespass, and the party injured has his option to sue either; if the Crown ratifies an act, the character of the act becomes altered, for the ratification does not give the injured party the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass.”
“In circumstances where there is a duty on the state which it ought to be performing even if no claim to enforce performance of the duty is made at all, it is hard to see how it could be right to refuse to require the duty to be performed because a claim was not made sooner. Accordingly, if there is a duty to investigate which is still continuing and of which the state is in continuing breach, it seems to us that a court should generally be willing to entertain a claim brought by someone with a sufficient interest for an order requiring an investigation to be held irrespective of the length and reasons for the delay in making the claim.”