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.
Type Research Article Information American Journal of International Law , Volume 53 , Issue 4 , October 1959 , pp. 826 - 852 Copyright © American Society of International Law 1959Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 168 II. S. 250 (1897).
3 See the useful monograph of B. D. Be, Foreign Confiscations, collecting all the relevant Anglo-American decisions.
4 Halsbury (Hailsham), Vol. XXVI, p. 246.
5 The writer is here accepting the definition proposed by Dr. F. A. Mann in his most helpful article “The Sacrosanctity of Foreign Acts of State,” 59 Law Quarterly Rev.42, 155 (1943).
6 Thus no consideration will be given to the extraterritorial effect to be allowed to such acts of state.
7 Lipstein , K , “ Recognition of Foreign Governments and the Application of Foreign Laws ,” 35 Grotius Society Transactions 157, 161 ( 1949 ).Google Scholar
8 [1921] 3 K.B. 532.
9 Blads Case (1673), 3 Swan 603, 604 (1674).
10 Admittedly, the additional complication of a treaty between England and Denmark, the interpretation of which was involved in the case, makes the decision less clear than would otherwise be the case.
11 6 Beav. 1 (1844), aft'd 2 H.L. Cas. 1 (1848).
12 2 H.L. Cas. 1, 17 (1848).
14 6 Beav. 1. See, e.g., at 50-51: “ I t appearing to me that all the reasons upon which the immunities of ambassadors are founded do not apply to the case of sovereigns but that there are reasons for the immunities of sovereign princes, at least as strong, if not much stronger, than any which have been advanced for the immunities of ambassadors … I think that … a sovereign prince resident in the dominions of another, is exempt from the jurisdiction of the Courts there.“
15 Such, at least, was the understanding of Judge Wallace in Underhill v. Hernandez, 65 Fed. 577 (2nd Cir. 1895), who, relying heavily on the Duke of Brunswick case, stated: “The decision [in the Duke of Brunswick case] was put, not upon the personal immunity of the sovereign from suit, but upon the principle that no court in England could sit in judgment upon the act of a sovereign, effected by virtue of his sovereign authority abroad.” Ibid, at 580.
16 2 Dall. 247 (U.S., 1796).
17 Bradford, Att'y Gen., June 16, 1794, 1 Ops. Att'y Gen. 45; 2 Moore, International Law Digest 23 (1906).
18 People v. McLeod, 25 Wend. 483 (N.Y. 1841). For some of the governmental-correspondence, see 2 Moore, Int. Law Digest 24 (1906).
19 7 Hun. 596, 599 (2d Dept., 1876).
21 68 U.S. 250 (1897).
22 Cf. Carr v. Fracis Times&Co., [1902] A.C. 176, where an action in tort was brought against the commander of a British warship for the seizure of arms in the territorial waters of Muscat. The seizure was authorized by the Sultan of Muscat and, therefore, according to the English rule of the conflict of laws that the act must be unlawful both by English law and by the law of the country where it was committed, no action lay. See also Dobree v. Napier (1836), 2 Bing. N.C. 781.
23 Page 826 above.
24 loc. cit. at 252.
25 246 U.S. 297 (1918).
26 246 U.S. 304 (1918).
28 As to which see below, p. 839 et seq.
29 213 U.S. 347 (1909).
30 It is a common error to assume that the act of state doctrine deprives the court of jurisdiction over the issue. Its alleged effect is rather to deprive the court of the possibility of inquiring into the validity of the act; the merits of the case must be decided as if the act were valid.
31 Salimoff v. Standard Oil Co., 237 App. Div. 686, 262 N.T.S. 693 (1st Dept.), aff'd,, 262 N.T. 220, 186 N.E. 679 (1933); Wulfsohn v. Russian Socialist Federated Soviet Republic, 202 App. Div. 421, 193 N.T.S. 472 (2nd Dept. 1922), rev'd, 234 N.T. 372, 138 N.B. 24 (1923); Dougherty v. Equitable Life Assurance Society, 266 N.T. 71, 193 N.E- 897 (1934).
32 Banco de Espana v. Federal Reserve Bank, 114 F. 2d 438 (2d Cir. 1940).
33 Bernstein v. Van Heyghen Frères S.A., 163 F. 2d 246 (2d Cir. 1947), cert, denied, 332 U.S. 772 (1947); Werfel v. Zivnostenka Banka, 260 App. Div. 747, 23 N.T.S. 2d 1001 (1st Dept. 1940), rev'd, 287 N.T. 91, 38 N.E. 2d 382 (1941); Kleve v. Basler Lebens Versicherungs Gesellschaft, 182 Misc. 776, 45 N.T.S. 2d 882 (Sup. Ct. N.T. 1943); Holzer v. Deutsche Reichsbahn Gesellschaft, 277 N.T. 474, 14 N.E. 2d 798 (1938), Annual Digest 1938-1940, Case No. 71.
34 Bernstein v. Van Heyghen Freres S.A., cited above; digested in 42 A.J.I.L. 217 (1948).
35 loc. cit. at 249.
36 Cf. United States ex rel. Von Heymann v. Watkins, 159 F. 2d 650 (2d Cir. 1947); Banco de Espana v. Federal Reserve Bank, cited note 32 above; Hewitt v. Speyer, 250 Fed. 367 (2d Cir. 1918), and Supreme Court decisions such as Underhill v. Hernandez, cited above, note 1.
37 Military Government Law No. 1, Arts. I, II ; Beg. under Law No. 1, Part I I ; Law No. 52 as amended, Art. 1, par. 2 (Mil. Gov. Gaz., U.S. Zone, June 1, 1946).
38 See Mann , , “ Judiciary and Executive in Foreign Affairs ,” 29 Grotius Society- Transactions 143 ( 1943 )Google Scholar ; Jaffe, Judicial Aspects of Foreign Relations.
39 In 1949 the Department of State issued a letter, in 20 Dept. of State Bulletin 592 (1949), stating that it was the policy of the Executive to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials. This would seem to be a clear statement that the courts need not apply the act of state doctrine in regard to Nazi acts. See comment on the Bernstein case by Lester H. Woolsey in 44 A.J.I.L. 129 (1950).
40 See Kleve v. Basler Lebens Versieherungs Gesellschaf t, 182 Misc. 776, 45 N.Y.S. 24 882 (Sup. Ct. 1943): “As for the very obnoxious and offensive character of the German decrees, the court is obliged to hold that the governing law is no less controlling because it is bad law.” Accord, Holzer v. Deutsche Beichsbahn Gesellschaft, 277 N.Y. 474, 14 N.E. 2d 798 (1938). Cf. note 113 below for lower court's opposite view.
41 Schendel v. Chicago M.&St. P. By., 168 Minn. 152, 210 N.W. 70 (1926); Harrison v. Triplex Gold Mines, 33 F. 2d 667 (1st Cir. 1929).
42 Cf. Hilton i). Guyot, 159 U.S. 113, 202 (1895).
43 Dunston v. Higgins, 138 N.Y. 70, 74; 33 N.E. 729, 730 (1893).
44 Hilton v. Guyot, note 42 above; “Warren v. Warren, 73 Fla. 764, 75 So. 35 (1917); and see Morgenstern, 4 Int. Law Q. 326, 340-343 (1951), for English, German, American and Italian decisions.
45 Some comfort may be derived from Judge Learned Hand's suggestion that the United States courts might accept jurisdiction over cases involving foreign acts of state if the Executive has indicated that the courts should so act. This would leave the parties with the possibility of seeking a statement of the State Department's policy and so an avenue of escape from the present impasse. Cf. Ex parte Muir, 254 U.S. 522 (1921), for a closely analogous procedure in sovereign immunity cases.
46 Contra: American Banana Corporation v. United Fruit Co., 213 U.S. 347 (1908); Stark v. Howe Sound Co., 148 Misc. 686, 266 N.Y.S. 368 (Sup. Ct. 1933), aff'd, 241 App. Div. 637, 269 N.Y.S. 936 (3rd Dept. 1934), amended, 242 App. Div. 668, 271 N.Y.S. 1097 (3rd Dept. 1934); McCarthy v. Reichsbank, 259 App. Div. 1016, 20 N.Y.S. 2d 450, aff'd, mem., 284 N.Y. 739, 31 N.E. 2d 508 (1940).
47 See Ee, Foreign Confiscations 159-163.
48 [1921] 3 K.B. 532.
49 1 Oppenheim, International Law 267 (8th ed., Lauterpaeht, 1955). But notice the additional qualification introduced for the first time by the learned editor in this edition that the act must not be contrary to international law.
50 [1921] 3 K.B. 545.
53 A clearly fallacious argument which takes as its premise the conclusion stated.
54 See especially Lipstein, 35 Grotius Society Transactions 157 (1949); Fachiri, 12 Brit. Tr. Bk. Int. Law 95 (1931).
55 [1929] 1 K.B. 718.
56 See discussion below, pp. 839, 846.
57 1 Oppenheim, International Law 329-330 (8th ed., Lauterpacht, 1955). See Wharton, Conflict of Laws 54 (3rd ed., 1905); Cheshire, Private International Law 133 (5 th ed.); Queen of Holland v. Drukker, [1928] Ch. 877, in which the Chancery Division, in dismissing an action to “enforce a claim in England by a foreign State against the subjects of the foreign State in respect to revenue due from the foreign subject,” observed that “there is a well recognized rule which has been enforced for at least 200 years or there abouts, under which these courts will not collect the taxes of foreign states for the benefit of the sovereigns of those foreign states.” Cf. Huntington v. Attrill, [1893] A. C. 150; Huntington v. Attrill, 146 U.S. 657, 688 (1892); Estonian State Cargo Line v. S.S. Elise and Laane and Baltser, [1949] Can. S.C. Bep. 530; King of Hellenes v. Brostrom (1923), Annual Digest 1923-1924, Case No. 81; Bergen v. Olsen (1924), ibid., Case No. 147 (Danish court refused to enforce a Norwegian revenue law) ; Norwegian State v. Bruhn (1924), ibid., Case No. 148 (Swedish courts refused to take jurisdiction to collect Norwegian taxes); Caisse Generale etc. v. S.A. des Ateliers de Godarville (1930), Annual Digest 1929-1930, Case No. 63 (Belgian court refused to enforce German social insurance legislation involving the collection of taxes); Court Fees (Danzig) Case (1932), Annual Digest 1931-1932, Case No. 73 ( “ I n accordance with the principles of international law, a foreign State may not employ the organs of another state for the execution of its foreign sovereign rights, for instance, to enforce payments of its public charges.“); Folliot v. Ogden (1787), H. Bl. Rep. C.P. I, 124, 136.
58 Dicey, Conflict of Laws 154 (8th ed., 1949).