1. The Court of Appeal

In 1971 Buttes appealed successfully against the refusal of permission to serve their writ out of the jurisdiction, with Lord Denning insisting that the English claim ought to proceed regardless of Californian proceedings.Footnote ³⁶ In 1974 Occidental appealed successfully against the striking out of its conspiracy counterclaim on foreign act of State grounds and Buttes cross-appealed unsuccessfully against a refusal to strike out Occidental's justification defence to Buttes’ slander claim on foreign act of State grounds.Footnote ³⁷

Lord Denning distinguished the English foreign act of State doctrine from its US counterpart—‘the courts of the United States have carried the doctrine of “acts of state” further than the courts of this country’Footnote ³⁸—whilst recognizing the connection between them demonstrated by the US Supreme Court's indirect reference in the 1897 case of Underhill v Hernandez to the House of Lords’ 1848 decision in Duke of Brunswick v King of Hanover.Footnote ³⁹ In Brunswick the deposed Duke brought English proceedings against the King, who acted as guardian of the Duke's former possessions in Germany. The House of Lords rejected the Duke's argument that the King's appointment as guardian was void and that he was liable to account for moneys derived from the Duke's former property:

Whilst Lord Denning analysed this passage in terms of the act of State doctrine,Footnote ⁴¹Brunswick is, as FA Mann argues, a case on immunity ratione materiae.Footnote ⁴² This is clear from Lord Lyndhurst's distinction between ‘matters of State’ and ‘private transactions’, with only the latter ‘subject to the jurisdiction of the Courts in this country’,Footnote ⁴³ and from the Master of the Rolls’ statement that ‘it is not necessary for me to give any opinion upon the question whether the act complained of is or is not an act of State’ (the Court of Appeal's Brunswick decision was upheld without reservation by the House of Lords).Footnote ⁴⁴

Like Brunswick, and again contrary to Lord Denning's 1974 analysis, the US Supreme Court's Underhill decision rests on immunity ratione materiae.Footnote ⁴⁵ Hernandez commanded revolutionary forces in Bolivar, Venezuela, and refused to issue Underhill, a US citizen, with a passport. When Underhill eventually left Bolivar, having been granted a passport, he brought proceedings against Hernandez in the US courts. The Second Circuit Court of Appeals decided the case on the basis of immunity ratione materiae and concluded that Hernandez was immune from US jurisdiction in respect of the governmental acts affecting Underhill.Footnote ⁴⁶ The acts were governmental because the revolutionary forces had formed a new government that was recognized by the US, and this approach was, according to the Second Circuit, consistent with Brunswick which was decided ‘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’.Footnote ⁴⁷

Lord Denning's treatment of Underhill is limited to these opening lines from the Supreme Court's judgment:Footnote ⁴⁸

Equal attention ought to be paid to a later passage, demonstrating Underhill's immunity ratione materiae basis, in which the Supreme Court upholds the Second Circuit's judgment because ‘[t]he acts complained of were the acts of a military commander representing the authority of the revolutionary party as a government, which afterwards succeeded, and was recognised by the United States’.Footnote ⁵⁰

Having misread Brunswick and Underhill, Lord Denning treats the English doctrine as having three branches. The first and third—the doctrine of sovereign immunity, and the Crown act of State doctrine—play no role in the 1974 decision.Footnote ⁵¹ It is the second branch, based on Luther v Sagor,Footnote ⁵² which precludes ‘the courts of this country [from] … inquir[ing] into the validity of the legislation or decrees of a foreign government which ha[ve] been recognised by the government of this country’,Footnote ⁵³ that determines the outcome of the 1974 appeal.

Luther, a Russian company whose assets were seized by the Russian State after the 1917 revolution, sought to recover wood from an English company who bought it from the Russian State. The Court of Appeal held it could not inquire into ‘the validity of the acts of an independent sovereign government in relation to property and persons within its jurisdiction’ with the later case of Oppenheimer v Cattermole confirming an exception to the prohibition, on domestic public policy grounds, where the acts in question conflict with international law.Footnote ⁵⁴ Luther's claim was dismissed because the British government recognized the post-revolution authority in Russia as the de facto government.Footnote ⁵⁵ The later decision in Princess Paley Olga v Weisz, not considered by Lord Denning, is to similar effect.Footnote ⁵⁶

This second, Luther v Sagor branch of the English doctrine is consistent with the current US doctrine established by the Supreme Court in its 1990 Kirkpatrick decision.Footnote ⁵⁷Kirkpatrick is generally regarded as narrowing the scope of the US doctrine compared with Underhill, the US Buttes litigation (see above) and the Supreme Court's 1964 Sabbatino judgment.Footnote ⁵⁸Sabbatino was the leading US case until Kirkpatrick was decided in 1990 and it is surprising that the Court of Appeal does not consider it in 1974.Footnote ⁵⁹

In Sabbatino the US Supreme Court held that the ‘continuing vitality’ of the act of State doctrine, as a ‘principle of decision … compelled by neither international law nor the Constitution … depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs’.Footnote ⁶⁰ It outlined three political considerations bearing on the question of whether the doctrine should bar jurisdiction. The first consideration concerns the clarity and certainty of any relevant international law—broadly, the application of international law will be less politically sensitive the more well established it is.Footnote ⁶¹ The second consideration focuses on ‘national nerves’ and establishes that where an issue is not particularly ‘important’ in foreign relations terms there will be little reason for the courts not to determine it.Footnote ⁶² According to the third consideration a court may consider whether a change of government in the relevant foreign State since the relevant acts occurred ‘may’ have ‘measurably altered’ US ‘political interests’.Footnote ⁶³ Combined, these considerations led the Supreme Court to conclude that:

Kirkpatrick reformed the US act of State doctrine, unravelling the politically inspired vagueness of Sabbatino. Rather than a principle of judicial abstention or a political limit on jurisdiction the Kirkpatrick doctrine is a ‘choice of law rule’,Footnote ⁶⁵ analogous to Lord Denning's second Luther v Sagor branch of the English doctrine. In Kirkpatrick Scalia J maintained that ‘[a]ct 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’.Footnote ⁶⁶ For Scalia J the fact that a court may make ‘factual findings’ that ‘suggest’ unlawful conduct by a foreign state does not make the act of state doctrine applicable,Footnote ⁶⁷ nor is ‘embarrass[ment]’ to ‘foreign governments’ relevant, because ‘[t]he act of state doctrine … merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid’.Footnote ⁶⁸

Lord Denning's 1974 judgment is consistent with Scalia J's 1990 Kirkpatrick analysis. He concludes that the Luther v Sagor doctrine is not applicable because Occidental's claim was for ‘compensation for the consequences’ of the Ruler of Sharjah's March 1970 decree and, as such, did not involve a ‘challenge’ to the ‘validity of any foreign legislation or decrees’.Footnote ⁶⁹ Lord Denning reverses his position in the 1980 appeal, which concerned the disclosure of evidence:

This amounts to a move from a narrow Luther v Sagor/Kirkpatrick validity doctrine in 1974 to a vague, flexible Sabbatino-type doctrine driven by political sensitivities in 1980.

In the 1980 appeal the issue was public interest immunity and the disclosure of documents in Buttes’ possession which detailed Foreign Office activity, communication between the ruler of Sharjah and Buttes and communication between the British government and other governments.Footnote ⁷¹ Donaldson and Brightman LJJ held that the documents were covered by public interest immunity.Footnote ⁷² Lord Denning disagreed on public interest immunity but agreed that the appeal should be dismissed because, in his view, the litigation should be disposed of as quickly as possible.Footnote ⁷³ Donaldson LJ merged public interest immunity and act of State considerations in his judgment. He regarded this statement, in a letter sent by the Foreign Office to the ruler of Sharjah's legal advisers, as significant: ‘[i]t appears to be open to you to submit to the court that as a matter of general principle confidential communications between states should, in the public interest, not be adduced in evidence without the consent of the states concerned, a principle to which the Foreign and Commonwealth Office would certainly presubscribe’.Footnote ⁷⁴ Linking this Foreign Office statement with the State Department letter quoted in the 1978 Fifth Circuit judgment,Footnote ⁷⁵ and noting that ‘[i]t must be remembered that the Crown was a principal actor in the dispute at an international diplomatic level’,Footnote ⁷⁶ Donaldson LJ concluded that ‘the views expressed [in the State Department letter are] compellingly persuasive regardless of what may be the “act of state” doctrine of the law of the United States’.Footnote ⁷⁷

In these terms, and in agreement with Lord Denning, Donaldson LJ endorsed a move away from the defined Luther v Sagor validity doctrine that found favour in 1974 towards a vague, flexible Sabbatino-type doctrine that enables judges to decline to hear cases involving foreign State acts on the basis of ill-defined political considerations such as those referred to in the Foreign Office and State Department letters. That move was completed in Lord Wilberforce's 1981 speech.

2. The House of Lords

Occidental appealed against the 1980 decision and, given the doubt cast by the 1980 decision on the 1974 decision, Buttes were allowed to appeal the 1974 decision out of time.Footnote ⁷⁸ Lord Wilberforce effectively adopted Lord Denning's 1980 analysis of the act of State doctrine and its application to the facts of the case:

Occidental conceded that the court would have to ‘consider’ what it labelled ‘the territorial-boundary question’ but anticipated the distinction in Kirkpatrick between ‘factual findings’ and validity by arguing that the court need only consider foreign acts of State as ‘part of the factual matrix of the dispute rather than [as] the applicable means of resolving it’.Footnote ⁸⁰ Lord Wilberforce did not consider this argument. He assumed that a series of cases on the extent to which English courts will adjudicate on title to foreign territory were relevant without first deciding, on the basis of the fact/validity distinction, whether a decision on title to foreign territory was required.Footnote ⁸¹

Lord Wilberforce reviewed a certificate provided by the Foreign Office affirming Sharjah's status as a sovereign State whose foreign affairs were conducted by the UK; a May 1970 letter to Occidental's solicitors detailing the UK government's reservations regarding the March 1970 decree whilst noting that the decree created an inter-State dispute to which a resolution must be found; and the letter, referred to above, from the UK representative to the ruler of Sharjah objecting to the unilateral extension of territorial waters in the March 1970 decree.Footnote ⁸² He concluded that this correspondence demonstrated ‘beyond any doubt that Her Majesty's Government regarded the issues between Sharjah and [UAQ] and between their respective concessionaires, as issues of international law, and involving difficult problems as to the width of territorial waters … and … the interests of other states’.Footnote ⁸³ As the US Fifth Circuit Court of Appeals and Donaldson LJ had in 1978 and 1980 respectively, Lord Wilberforce defers to the views expressed in government correspondence and accepts that ‘[t]he issues are, as Her Majesty's Government saw them, international issues, and it is in that character that their justiciability by a municipal court must be considered’.Footnote ⁸⁴

More than any other aspect of the Buttes Gas litigation or any other development in the history of the English doctrines, Lord Wilberforce's failure to engage with Occidental's fact/validity argument, coupled with his willingness to accept the Foreign Office/UK government view that the dispute between Buttes and Occidental could not be separated from the inter-State territorial dispute, highlights the political unconscious of the English foreign act of State and non-justiciability doctrines. Caught in the trap between the government's wishes,Footnote ⁸⁵ as expressed in correspondence, and the rule of law's requirement for independent judicial reasoning Lord Wilberforce follows the path established in the 1980 Court of Appeal decision and shifts the English doctrine from a Luther v Sagor/Kirkpatrick-type validity doctrine to a Sabbatino-type doctrine focused on political considerations. This new political doctrine serves to conceal the fact that Lord Wilberforce has decided to prevent the case being heard out of deference to the government's wishes rather than as the result of independent judicial reasoning.Footnote ⁸⁶

He labels this new doctrine a ‘wider principle’, ‘a more general principle’—that is, wider and more general than the Luther v Sagor/Kirkpatrick-type, validity-based foreign act of State doctrine, and the principle that English courts will not adjudicate on title to foreign territory— which dictates that ‘the courts will not adjudicate upon the transactions of foreign sovereign states’.Footnote ⁸⁷ He is not, so far as he is concerned, making new law: ‘there is, and for long has been … a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts’.Footnote ⁸⁸ Admitting the doctrinal shift in his speech would risk revealing its political unconscious so Lord Wilberforce creates an English Sabbatino-type doctrine by mischaracterizing previous decisions as long-standing authority for the doctrine that he creates anew whilst concealing the close connection between his speech and Sabbatino.Footnote ⁸⁹

The first mischaracterization involves Brunswick and Blad v Bamfield.Footnote ⁹⁰ Repeating Lord Denning's 1974 error,Footnote ⁹¹ Lord Wilberforce treats Brunswick as support for his ‘wider principle’ when, as discussed, it is a decision on immunity ratione materiae.Footnote ⁹²Blad v Bamfield, mischaracterized as an act of State case, is early authority (from 1674) for what became the Luther v Sagor validity doctrine.Footnote ⁹³ The King of Denmark issued Blad with letters patent permitting him to trade in Iceland. Bamfield argued that Blad had interfered with his right to trade in Iceland by seizing his goods. When Blad came to England Bamfield had him arrested and Blad sought an injunction ordering his release. Granting the injunction Lord Nottingham held that ‘to send [the case] to a trial at law, where either the Court must pretend to judge of the validity of the king's letters patent in Denmark, or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd.’Footnote ⁹⁴ Ignoring Lord Nottingham's emphasis on ‘validity’, Lord Wilberforce described Blad as ‘a decision clearly on justiciability’ despite its compatibility with the Luther v Sagor doctrine.

He seeks further support in Cook v Sprigg, quoting Lord Halsbury's dictum that ‘[i]t is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer’.Footnote ⁹⁵ In Cook the Privy Council refused to inquire into the validity of the annexation of territory by the British government because doing so would interfere in the ‘transactions of independent States’, specifically Pondoland and the UK.Footnote ⁹⁶ Lord Wilberforce fails to consider the context of his isolated quotation and Cook, on a proper analysis, supports the Luther v Sagor validity doctrine rather than his ‘wider principle’.

Next, Lord Wilberforce asserts that ‘[a]n earlier recognition, in an appropriate circumstance, of non-justiciability, had been given by Lord Kingsdown in Secretary of State in Council of India v Kamachee Boye Sahaba’.Footnote ⁹⁷ In Kamachee, decided in 1859, the Privy Council refused to inquire into the East India Company's violent expropriation of property and land belonging to the Rajah of Tanjore after his death.Footnote ⁹⁸ On the basis that ‘it is difficult to suppose that the Government [of India] intended to give a legal right of redress to those who might think themselves wronged … in the execution of a political measure, to the judgment of a legal tribunal’,Footnote ⁹⁹ and noting that the East India Company lacked any legal right to the Raj,Footnote ¹⁰⁰ the Council advised the Queen that the British Government, acting through the East India Company, was not subject to the jurisdiction of the Indian courts.Footnote ¹⁰¹ As Amanda Perreau-Saussine notes, the Council concludes that a politically motivated and violent act carried out without legal justification is non-justiciable because of its lack of legal justification.Footnote ¹⁰²

A similar situation existed in Buttes Gas. The British government, having initially condemned the ruler of Sharjah's purported extension of territorial waters, changed its position after Iran's intervention,Footnote ¹⁰³ and put pressure on the ruler of UAQ and Occidental through the Royal Navy and the RAF.Footnote ¹⁰⁴ The British Government used similar methods in Buttes Gas to those it employed, via the East India Company, in Kamachee, achieving its preferred outcome by force without any apparent concern for legality.

The Foreign Office could not, it seems, allow Buttes Gas to reach trial because judicial determination of the dispute between the companies would involve inquiry into the legality of British military action abroad.Footnote ¹⁰⁵ Whilst it is decided on foreign act of State or non-justiciability grounds Buttes Gas is, therefore, and unconsciously, a Crown act of State case.Footnote ¹⁰⁶ The government chose not to play a direct role in the litigation, preferring to influence proceedings indirectly through correspondence, but neither the government nor Buttes wanted the status quo altered. The government had no reason to intervene in the case because Buttes was effectively acting as its agent, as the East India Company had in Kamachee.

Adopting some of the US Fifth Circuit court's language,Footnote ¹⁰⁷ Lord Wilberforce concludes that:

He maintains that ‘the ultimate question what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, upon an appreciation of the nature and limits of the judicial function’.Footnote ¹⁰⁹ This is an indirect admission that, as a matter of law, ‘the nature and limits of the judicial function’ in cases involving foreign State acts are, and should be, subject to political control by government because the government's recognition of judicial independence ‘does not … include the granting of judicial discretion in the sphere of foreign affairs’.Footnote ¹¹⁰ In Buttes Gas political propriety defines legal doctrine and political considerations trump the value of independent judicial reasoning, and it is on that basis that the House of Lords stays the litigation.

1. From A Limited v B Bank to Yukos Capital

In the 1996 case of A Limited v B Bank a UK bank held foreign currency which allegedly infringed the claimant's UK patent for a type of security paper.Footnote ¹¹¹ The central bank of the country whose currency was held by B bank argued that the claim was non-justiciable because a finding for the claimant would interfere with the circulation of its currency.Footnote ¹¹² Relying on Kirkpatrick Leggatt LJ held that the court was not asked to adjudicate on the circulation of currency and, expressing his agreement and also relying on Kirkpatrick, Morritt LJ held that ‘the principle established in the judgments of the courts in England is limited to the proposition that the courts of England will not adjudicate upon the validity of acts done abroad by virtue of foreign sovereign authority’.Footnote ¹¹³

In Kuwait Airways v Iraqi Airways (Nos 4 and 5) the Court of Appeal, in 2000, and the House of Lords, in 2002, held that the foreign act of State doctrine did not require the English courts to uphold the validity of an Iraqi government order purporting to transfer ownership of planes seized during Iraq's 1990 invasion of Kuwait from Kuwait Airways to Iraqi Airways.Footnote ¹¹⁴ As Luther v Sagor, read together with Oppenheimer v Cattermole, establishes that, although ordinarily prescribed, inquiry into the validity of foreign State acts is exceptionally permissible on public policy grounds which include clear breaches of international law, the House of Lords, if not the Court of Appeal, given that Buttes Gas is a House of Lords decision, could have applied Luther v Sagor to reach this result.Footnote ¹¹⁵ Both courts preferred and applied the Buttes Gas doctrine however.

Echoing the language of Lord Wilberforce's speech, the Court of Appeal avoided an ‘inflexible and all-encompassing rule’:Footnote ¹¹⁶

Political considerations and the views of the British government precluded inquiry into the March 1970 decree in Buttes Gas, but those factors necessitate a finding that the Iraqi government order in Kuwait Airways is invalid as Lords Nicholls and Steyn recognized in concluding that a finding of validity would contravene the UK's UN Charter obligations and undermine the UK's position as a participant in military action against Iraq.Footnote ¹¹⁸ It is in this sense that Kuwait Airways is a political decision consistent with the political logic of Buttes Gas.

In Berezovsky v Abramovich, decided by the Court of Appeal in February 2011, Berezovsky brought proceedings against Abramovich for intimidation.Footnote ¹¹⁹ He claimed Abramovich had demanded that he sell shares to him and told him that in making that demand he was acting on the orders of Russian President Putin who, according to Berezovsky, made similar demands in an earlier meeting.Footnote ¹²⁰ Abramovich argued that the case could not be decided without inquiry into Russian State acts.Footnote ¹²¹ The Court of Appeal disagreed on the basis of the fact/validity distinction, concluding that Berezovsky's claim was that certain State acts happened and not that they were ‘invalid’.Footnote ¹²² In taking this Luther v Sagor/Kirkpatrick-type approach the Court of Appeal relied on its express approval of Kirkpatrick in A Limited v B Bank.Footnote ¹²³

In Lucasfilm v Ainsworth, decided by the Supreme Court in July 2011, the producers of the Star Wars films alleged copyright infringement by the designer and manufacturer of helmets used in the films.Footnote ¹²⁴ The Supreme Court focussed on cases concerning the justiciability of intellectual property rights and title to foreign land,Footnote ¹²⁵ distinguishing Buttes Gas because it concerned the ‘related, [but] more general, principle that the courts will not adjudicate upon the transactions of foreign sovereign states’.Footnote ¹²⁶ The analysis of act of State issues nevertheless suggests a shift from Buttes Gas towards an emphasis on validity:

This recognizes a foreign copyright exception to the Luther v Sagor/Kirkpatrick-type doctrine. It is significant that the Supreme Court did not undertake a Buttes Gas/Sabbatino-type analysis of the courts’ capacity to judge foreign intellectual property rights and the political and foreign relations consequences of doing so.

When the Court of Appeal decided Yukos Capital in June 2012,Footnote ¹²⁸ and notwithstanding the earlier Buttes Gas/Sabbatino-type decision of the House of Lords in Kuwait Airways, something of a rebellion against Buttes Gas was underway in the Court of Appeal (A Limited and Berezovsky) with some, albeit limited and implicit, evidence of Supreme Court support (Lucasfilm). In Yukos Capital the Court of Appeal resisted that rebellion, preserving a Buttes/Sabbatino-type approach whilst, consistent with its earlier decision in Ecuador v Occidental,Footnote ¹²⁹ mitigating the effects of that approach on the justiciability of arbitration cases.Footnote ¹³⁰

The claimant, Yukos, sought enforcement of Russian arbitral awards concerning loan agreements against Rosneft, the defendants, in the English courts.Footnote ¹³¹ At the time the awards were made, and when they were set aside by the Russian courts, Rosneft was ‘effectively controlled by the Russian state’.Footnote ¹³² Yukos argued that the setting aside of the awards by the Russian courts was a ‘travesty of justice’ resulting from a ‘campaign of state interference’ in which the State secured a judgment in favour of a company it essentially owned.Footnote ¹³³ That argument was accepted in proceedings before the Dutch courts.Footnote ¹³⁴

In line with Buttes Gas the Court of Appeal blurs the lines between the act of State and non-justiciability doctrines, describing Lord Wilberforce's ‘principle of “non-justiciability”’ as ‘not so much a separate principle [to foreign act of State] as a more general and fundamental principle’ and ‘the paradigm restatement of [the act of State] principle’.Footnote ¹³⁵ Echoing the US Supreme Court's Sabbatino refusal to ‘[lay] down or [reaffirm] an inflexible and all-encompassing rule’,Footnote ¹³⁶ the Court of Appeal insisted that ‘[t]he 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.’Footnote ¹³⁷

The Court of Appeal denies the incompatibility of this approach with A Limited v B Bank and Berezovsky on the basis of a revisionist account of those decisions which is similar in method to Lord Wilberforce's mischaracterization of the early English cases (Blad, Brunswick, Cook, and Kamachee).Footnote ¹³⁸A Limited is presented as a decision ‘on the twin grounds that the use of the banknotes in the United Kingdom was commercial, and that in any event the matters complained of occurred in this country and not in the territory of the foreign state’,Footnote ¹³⁹ although it is noted that ‘[t]he judgments also referred to the Kirkpatrick case’ as reflecting the English legal position.Footnote ¹⁴⁰ ‘[A]lso referred’ suggests that the Kirkpatrick elements of A Limited are obiter dicta,Footnote ¹⁴¹ a suggestion re-enforced by this statement: ‘[i]t seems to us that the claim to rely on the act of state doctrine was so far outwith the principles of that doctrine as to render its citation of no help in this’.Footnote ¹⁴²A Limited is not, apparently, a decision on the act of State doctrine.Footnote ¹⁴³

In Berezovsky the Court of Appeal expressly approved A Limited's endorsement of Kirkpatrick and affirmed that A Limited was binding on the Court of Appeal.Footnote ¹⁴⁴ Glossing over that affirmation, Yukos Capital insists that ‘it was pertinent for this court [in Berezovsky] to cite the Kirkpatrick case in support of its own conclusion that the act of state doctrine was not involved where the only issue was whether certain acts had occurred, not whether they were invalid or wrongful’.Footnote ¹⁴⁵

This revisionist approach extends to Kirkpatrick itself:

That analysis cannot be reconciled with Kirkpatrick. Scalia J's judgment defined a doctrine that that US Supreme Court had refused to define, for political reasons, in Sabbatino, and Yukos Capital sides with Sabbatino and Buttes Gas against the Luther v Sagor/Kirkpatrick doctrine. In refusing to recognize the distinction between the Sabbatino/Buttes Gas and Luther v Sagor/Kirkpatrick doctrines the Court of Appeal reinscribes the political unconscious of Lord Wilberforce's Buttes Gas speech onto the act of State and non-justiciability doctrines, resisting the rebellion against the Buttes Gas doctrine in A Limited and Berezovsky.Footnote ¹⁴⁷

The narrow point decided by Yukos Capital is that the decisions of foreign courts are not acts of State,Footnote ¹⁴⁸ and that the English courts were therefore free to disregard the Russian court order setting the arbitral awards aside and enforce those awards if appropriate on the merits.Footnote ¹⁴⁹ That the Court of Appeal felt it necessary to undertake an omnibus review of the cases in reaching this narrow decision indicates, in my view, its intention to avoid the political implications of the doctrinal shift towards Luther v Sagor/Kirkpatrick favoured by A Limited and Berezovsky.

2. Rahmatullah, Khan, Belhaj and Shergill v Khaira

In Rahmatullah, decided by the Supreme Court in October 2012, a Pakistani citizen held by US forces in Afghanistan, having been arrested in Iraq by UK forces who transferred him into the custody of US forces in Iraq, who then transferred him to Afghanistan, made a habeas corpus claim.Footnote ¹⁵⁰ Leggatt J's November 2014 judgment on Mr Rahmatullah's separate claim for damages based on these facts will be considered after the judgments in Khan, Belhaj and Shergill v Khaira have been addressed.

The habeas corpus claim was based on the argument that through Articles 49 and 45 of the fourth Geneva Convention (‘GC4’) the British government retained sufficient control over Mr Rahmatullah's detention by US forces to secure his release.Footnote ¹⁵¹ Article 49 prohibits the transfer of ‘protected persons’, such as Mr Rahmatullah, ‘from occupied territory’—Iraq—to ‘the territory of any other country’—Afghanistan.Footnote ¹⁵² Article 45 obliges the ‘Detaining Power’—the UK—to ‘take effective measures to correct the situation or … request the return of the protected persons’ if the ‘tranferee Power’—the US—‘fails to carry out the provisions of the present Convention in any important respect’.Footnote ¹⁵³ On this basis Lord Kerr emphasized that ‘[i]t is the lawfulness of the UK's inaction in seeking [Mr Rahmatullah's] return [as opposed to the foreign State acts of the US] that is in issue’.Footnote ¹⁵⁴ On the basis of correspondence between the UK and US governments in which the US made its intention to continue to hold Mr Rahmatullah clear, the Supreme Court upheld the Court of Appeal's conclusion that a ‘sufficient return to the writ was made by the Secretaries of State’ and that no further order was appropriate.Footnote ¹⁵⁵

The Supreme Court's analysis can be read as consistent with the fact/validity distinction that underpins Luther v Sagor and Kirkpatrick. The evidence of unlawful US conduct imposed an Article 45 obligation on the UK to act. The issue was the legality of the UK's apparent inaction and not the apparent collateral illegality of US acts, and the Supreme Court was not prevented from taking any collateral illegality into account as part of the factual basis for determining the legality of the UK's conduct. To that extent, and whilst, in a narrow sense, a decision that turns on Article 45 of GC4, the Supreme Court's decision can be read as authority for the proposition that foreign act of State and non-justiciability considerations do not bar the English courts adjudicating on the legality of UK State conduct where the illegality of that conduct depends on alleged, collateral unlawful acts by a foreign State or, in the language of Kirkpatrick, on ‘factual findings’ that ‘suggest’ unlawful conduct by a foreign State.Footnote ¹⁵⁶

The notion that the foreign act of State doctrine does not bar findings of collateral illegality is consistent with Lord Wilberforce's Buttes Gas speech and his distinction between legal issues that arise ‘incidentally or collaterally’ and those that are ‘at the heart of the case’.Footnote ¹⁵⁷ The inconsistency of this collateral illegality analysis with the ‘silhouette’ of a doctrine favoured by Yukos Capital, along with Yukos Capital's rejection of the fact/validity approach of Luther v Sagor, Kirkpatrick, A Limited and Berezovsky explains the fact that this reading of Rahmatullah has not influenced subsequent Court of Appeal decisions.

In Khan, decided by the High Court in December 2012 and the Court of Appeal in January 2014, the claimant was refused permission to apply for judicial review of a decision by the Foreign Secretary in which he refused to provide details of the provision of information by UK State agents (GCHQ) to US State agents in support of drone strikes in Pakistan.Footnote ¹⁵⁸ It was argued that to ensure respect for English criminal law the Foreign Secretary was obliged to implement a policy on the provision of such information. According to the claimant statute established that a secondary party providing information to a principal could be guilty of murder or manslaughter even though the principal who fired the shot—a CIA operative—could not be guilty of the offence because they are not subject to English criminal jurisdiction.Footnote ¹⁵⁹

The High Court and Court of Appeal, rather surprisingly, focused on the potential US reaction to this argument rather than on the question of whether it was legally correct.Footnote ¹⁶⁰ The Court of Appeal emphasized that ‘[w]hat matters is that the findings would be understood by the US authorities as critical of them’,Footnote ¹⁶¹ refusing permission to apply for judicial review because ‘the claims … involve serious criticisms of the acts of a foreign state’.Footnote ¹⁶²

Khan stands alone in affirming that mere criticism of a foreign State is a bar to jurisdiction. The claimant's English criminal law argument can be seen as consistent with the fact/validity interpretation of Rahmatullah advanced above; that is, as an assertion of collateral illegality by US State agents as a matter of fact rather than as a matter of English criminal law. Whilst the decision in Khan can, therefore, be interpreted as inconsistent with the Supreme Court's Rahmatullah judgment the fact/validity, collateral illegality interpretation of Rahmatullah is, of course, inconsistent with Yukos Capital. Khan's ultimate basis is the Court of Appeal's Yukos Capital endorsement of a Buttes Gas/Sabbatino-type emphasis on political considerations over legal reasoning,Footnote ¹⁶³ and the Khan Court of Appeal respects that emphasis, focussing on the potential US reaction to the claimant's English criminal law argument rather than the merit of the argument itself.

In Belhaj the claimants alleged that various current and former UK State agents and agencies, including the former Foreign Secretary Jack Straw, were involved in their extraordinary rendition from China to Libya, via Malaysia, Thailand and Diego Garcia.Footnote ¹⁶⁴ They argued that the seven defendants had ‘secondary liability’ for the acts of the ‘primary tortfeasors [who] … are foreign states’,Footnote ¹⁶⁵ having acted ‘in furtherance of [a] common design’ with foreign State agents.Footnote ¹⁶⁶ The English rules on joint tortfeasance obliged the claimants to prove a ‘common design’ between the defendants and the foreign States, that the ‘actual perpetrator [foreign State agents] committed a tort’ and ‘that the alleged participator [the defendants] did acts in furtherance of the common design’.Footnote ¹⁶⁷

In a December 2013 judgment Simon J held that ‘the act of state doctrine applie[d]’ to acts carried out in China, Malaysia, Thailand and Libya and that those acts were therefore ‘non-justiciable’.Footnote ¹⁶⁸ He noted, consistent with Buttes Gas, that the claims challenged ‘the activity of a foreign state on its own territory’ and that there were no relevant ‘“judicial or manageable”, or “clear and identifiable” standards’ on which to base a judgment about that activity, adding the Luther v Sagor/Kirkpatrick-type justification that the claims challenged ‘the legal validity of those acts within the states’ own territory’.Footnote ¹⁶⁹

Simon J also held that inquiry into US State acts was barred on act of State grounds.Footnote ¹⁷⁰ Whilst the fact that US State agents were acting outside US territory and the possibility of an exception to the act of State doctrine in cases of grave human rights violations made the application of the act of State doctrine to US State acts more complex than in relation to Chinese, Malaysian, Thai and Libyan State acts,Footnote ¹⁷¹ Simon J was ‘doubtful whether a validity issue ar[ose]’ and concluded that there were ‘no clear and incontrovertible standards’ by which to judge the legality of the US State acts and that there was ‘incontestable evidence that [to do so] … would be damaging to the national interest’.Footnote ¹⁷² As to applicable law, Simon J indicated that he would have held the law of China, Malaysia, Thailand, the United States and Libya applicable had the claim not been barred on act of State grounds.Footnote ¹⁷³

The Court of Appeal reversed Simon J's decision and held that the claim was not barred on act of State grounds, whilst upholding Simon J's conclusion on applicable law and, as the case was not barred from proceeding, ordering the claimants to plead and prove that foreign law.Footnote ¹⁷⁴ It reached that conclusion not because the doctrine did not apply but because ‘the doctrine may be disapplied on grounds of public policy where there is a violation of international law or a grave infringement of fundamental human rights’.Footnote ¹⁷⁵ US State acts were, in addition to the human rights ‘limitation’ which applied to Chinese, Malaysian, Thai and Libyan State acts, also covered by a ‘territoriality limitation’ restricting the foreign act of State doctrine, as distinct from the ‘wider principle of non-justiciability’ which was not at issue in Belhaj,Footnote ¹⁷⁶ ‘to intra-territorial acts’.Footnote ¹⁷⁷

The Belhaj Court of Appeal approaches Kirkpatrick as a ‘limitation’ on the foreign act of State doctrine rather than as a doctrine distinct from that set out in Buttes Gas and Yukos Capital and, in conflict with Yukos Capital but in line with Berezovsky, treats the act of State and non-justiciability doctrines as separate.Footnote ¹⁷⁸ In this way the court seems keen to decide Belhaj without resolving the broader doctrinal conflict between A Limited and Berezovsky and Yukos Capital, Khan and Buttes Gas, and this is indirectly acknowledged in the Court of Appeal's conclusion that ‘in the particular circumstances of this case’ any potential ‘damage … to the foreign relations and national security interests of the United Kingdom’ did not ‘outweigh the need for our courts to exercise jurisdiction’.Footnote ¹⁷⁹

Belhaj does, however, consider the Supreme Court's reflections on the non-justiciability doctrine in its June 2014 Shergill v Khaira decision.Footnote ¹⁸⁰Shergill involved a religious dispute between trustees of a Sikh charity and the Supreme Court was concerned with the scope and limits of judicial power and the potential non-justiciability of litigation in general, rather than in the specific context of foreign State acts. The Supreme Court observed that the issue in Buttes Gas ‘about the international boundaries of sovereign states … was non-justiciable because it was political’ and that the issue was political because ‘it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations’ and because of a ‘lack of judicial or manageable standards’.Footnote ¹⁸¹ Occidental's Buttes conspiracy claim, according to the Supreme Court, ‘involved assessing decisions and acts of sovereign states which had not been governed by law but by power politics’ but ‘[i]t is difficult to imagine that such a conclusion could have been reached in any other context than the political acts of sovereign states, for the acts of private parties, however political, are subject to law’.Footnote ¹⁸²

The Supreme Court's analysis recognizes the political nature of the Buttes Gas decision but that does not imply recognition of its political unconscious. The political unconscious of Lord Wilberforce's speech is apparent in his willingness to accept the Foreign Office's view that the issues between Buttes and Occidental could not be separated from the wider inter-State dispute.Footnote ¹⁸³ Whether a case involves inquiry into ‘the political acts of sovereign states’ depends on the court's characterization of the litigation and that characterization can, as Lord Wilberforce's deference to Foreign Office views demonstrates, be subject to political influence. What is important is not that the ‘political acts of foreign states’ are non-justiciable—that much is accepted by the fact/validity distinction in Luther v Sagor and Kirkpatrick—but how judges determine whether a particular case requires adjudication on the validity of foreign sovereign acts, because that is where the political unconscious bites. By not emphasizing the importance of the fact/validity distinction in the characterization of litigation and the determination of whether a case requires inquiry into ‘the political acts of sovereign states’ the Supreme Court effectively endorses Buttes Gas and its Sabbatino-type doctrine. That doctrine recognizes the government's entitlement to exert political control over judicial decisions as to whether a case involving foreign State acts should be heard.

Belhaj is decided on the basis of two exceptions to the foreign act of State doctrine—human rights and extraterritoriality—rather than on the basis of the fact/validity distinction and, in that sense, the Court of Appeal walks a line between the Buttes Gas/Sabbatino and Luther v Sagor/Kirkpatrick approaches.Footnote ¹⁸⁴ Had the decision, contrary to the Shergill approval of Buttes Gas and its Sabbatino-type doctrine, been based on the fact/validity distinction a different approach to the choice of law question would, in my view, have resulted.

Simon J and the Court of Appeal, as noted, concluded that the applicable law was that of China, Malaysia, Thailand, the US, and Libya,Footnote ¹⁸⁵ based on section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 which provides ‘the general rule … that the applicable law is the law of the country in which the event constituting the tort or delict in question occur’ and section 11(2) which provides that ‘[w]here elements of those events occur in different countries … (a) for a cause of action in respect of personal injury … the law of the country where the individual sustained the injury’.Footnote ¹⁸⁶ The claimants relied on section 12 of the 1995 Act which provides for the displacement of the section 11 ‘general rule’ where the ‘factors connecting the tort … with another country’—the UK—in comparison with those connecting it ‘with the country whose law would be applicable under the general rule’, make it ‘substantially more appropriate for the applicable law for determining the issues in the case … to be the law of the other country’, or English law,Footnote ¹⁸⁷ but the argument was rejected.Footnote ¹⁸⁸

Applying the fact/validity distinction to Belhaj it is apparent that, as in the Supreme Court's Rahmatullah decision, the alleged illegality of the various foreign State acts is collateral in nature and that even that collateral illegality is relevant only because of the English joint tortfeasance rules.Footnote ¹⁸⁹ Without an allegation of collateral US illegality the Rahmatullah claim would have failed and without an allegation of illegal conduct by foreign State agents there would, on joint tortfeasance grounds, be no claim in Belhaj. The fact of that collateral illegality does not, however, make the act of State or non-justiciability doctrines applicable. As in Rahmatullah, the issue is not the legality of the foreign State acts but the legality of the British defendants’ conduct. The fact that the illegality of the defendants’ conduct would imply the illegality of foreign State acts is immaterial because ‘[the] legality [of those foreign State acts] is simply not a question to be decided’ in Belhaj.Footnote ¹⁹⁰

The need to allege foreign State collateral illegality and to plead foreign law in Belhaj is a product of the English rules on joint tortfeasance. Those rules are derived from Fish & Fish and it was open to the Belhaj Court of Appeal to distinguish Fish on the basis that it did not concern the legality of UK involvement in multilateral, inter-State operations.Footnote ¹⁹¹ The claimants in Belhaj ought to be required to prove only that the facts, as alleged, occurred; that is all that the joint tortfeasance rules should require by way of ‘common design’. Having established those facts the question is whether the defendants acted unlawfully as a matter of English law.

It is absurd to maintain that the legality of the involvement of UK State agents, including the then Foreign Secretary, in the alleged Belhaj rendition operation ought to be governed by the law of China, Malaysia, Thailand, the US, and Libya. When analysed on the basis of the fact/validity distinction, via the collateral illegality interpretation of Rahmatullah, and on the basis that Fish & Fish is to be distinguished, English law is, per section 12 of the 1995 Act, the ‘substantially more appropriate’ applicable law.Footnote ¹⁹²

Requiring the claimants to plead and prove the foreign law of China, Malaysia, Thailand, the US, and Libya places a very substantial procedural hurdle in their path. If not overcome that hurdle will cause their claims to ‘fail’,Footnote ¹⁹³ and that would achieve the result that would have been achieved had the claim been deemed non-justiciable. In this way requiring the claimants to plead and prove foreign law can be seen as an indirect and unintentional means by which to, in effect, defer to the government's wishes.

The relevance of the Justice and Security Act 2013 to Belhaj must also be considered.Footnote ¹⁹⁴ The 2013 Act establishes the possibility of civil claims being tried by ‘closed material procedure’ (CMP).Footnote ¹⁹⁵ It permits closed civil trials in cases in which ‘sensitive material’—that is ‘material the disclosure of which may be damaging to national security’—may be disclosed.Footnote ¹⁹⁶ Such material is clearly involved in Belhaj given the involvement of numerous intelligence and security agencies. CMP trials involve special advocates with access to ‘sensitive material’ who are unable to take instructions from their clients once they have seen that material.Footnote ¹⁹⁷ Special advocates are ‘not responsible to the party to the proceedings whose interests [they have been] appointed to represent’ and the proceedings themselves can be conducted in private, without a hearing, or ‘in the absence of … a party to the proceedings’.Footnote ¹⁹⁸ In a CMP case a court may withhold the reasons for its judgment where the disclosure of those reasons ‘would be damaging to the interests of national security’, only providing those reasons to the special advocate and those who disclosed the ‘sensitive material’.Footnote ¹⁹⁹

The public interest immunity concerns which led, in part, to the outcome in Buttes Gas are addressed by the JSA.Footnote ²⁰⁰ Whilst the JSA was not directly relevant to the Court of Appeal's Belhaj decision it seems reasonable to suggest that the fact that a trial could be conducted by closed material procedure and on the basis of all relevant evidence including ‘sensitive material’, rather than on the basis of partial evidence, some not having been disclosed on public interest immunity grounds, as would have been the case had Buttes Gas gone to trial, is a relevant part of the legal environment in which the decision was taken.

Even if the claimants are able to overcome the procedural hurdle of pleading and proving foreign law there is a significant possibility that any trial and judgment in Belhaj will not be public. As such, any trespass into the conduct of foreign affairs and any embarrassment to British or foreign governments may be minimal. In these circumstances, and taken as a whole, it is difficult to regard the Court of Appeal's Belhaj judgment as a ‘victory for justice’.Footnote ²⁰¹ It is by no means certain that the claimant will be able to plead and prove foreign law and the requirement for them to do so can, for the reasons set out above, be seen as linked to the Court of Appeal's analysis of the act of State and non-justiciability doctrines. Any trial that does take place may be held on a CMP basis, with all that that entails for the publicness of the process. It seems that procedural and statutory means were available which unconsciously averted the need for the Court of Appeal to reach the unpalatable decision that a claim involving alleged UK State complicity in torture and human rights abuse was barred on foreign act of State grounds, whilst minimizing the possibility of embarrassment being caused to the British government by the case being heard. That is the practical reality of the result, and it is a practical reality that cannot be reconciled with the suggestion that political factors played no unconscious part in the Court of Appeal's decision or that the decision is the result of absolutely independent non-political judicial reasoning.Footnote ²⁰²

In the 2014 case of Rahmatullah—the facts and the identity of the claimant are as in the habeas corpus claim of the same name, discussed above—Mr Rahmatullah sought damages at common law and under the Human Rights Act (‘HRA’) from the foreign and defence secretaries for his detention and treatment during detention by UK and US forces.Footnote ²⁰³ He alleged that his detention and alleged ill-treatment by UK forces was unlawful, that, because the defendants ought to have been aware of the risk of torture, his transfer to US custody by UK forces was unlawful, and that the defendants were ‘complicit in and … liable for alleged ill treatment and unlawful detention’ by the US.Footnote ²⁰⁴ A large group of Iraqi civilians made similar allegations concerning their detention by UK forces in Iraq and their transfer into US custody.Footnote ²⁰⁵ Three Iraqi civilian test cases were joined with Mr Rahmatullah's claim in order to determine preliminary issues on foreign act of State, non-justiciability, and Crown act of State.Footnote ²⁰⁶

Whilst the defendants initially argued that foreign and Crown act of State and non-justiciability issues arose in all claims—including those under the HRA and the Rahmatullah judicial review application, which sought an order that the defendants investigate his transfer to US custody and their failure to seek his return from US custody—they only pursued those arguments in relation to the claims at common law.Footnote ²⁰⁷ Leggatt J's judgment on foreign and Crown act of State and non-justiciability deals only with the common law claims made by Mr Rahmatullah and the Iraqi civilians and with Mr Rahmatullah's application for permission to apply for judicial review, and not with the HRA claims.Footnote ²⁰⁸

In light of the Court of Appeal's Belhaj judgment the Rahmatullah defendants conceded that the foreign act of State doctrine did not bar the claims.Footnote ²⁰⁹ That made it unnecessary for Leggatt J to give a judgment on foreign act of State, although there remained issues on Crown act of State, but he did so because ‘the reasons which persuaded me independently of the Court of Appeal's decision to reject the defendants’ arguments may still be relevant to the final determination of the present cases’.Footnote ²¹⁰

Leggatt J disagrees with some aspects of the Court of Appeal's reasoning in Belhaj.Footnote ²¹¹ It is important to note that whilst the Court of Appeal bases its Belhaj decision on the foreign act of State doctrine,Footnote ²¹² Leggatt J's Rahmatullah decision is based on the separate, at least according to Leggatt J, ‘question of justiciability’.Footnote ²¹³ Leggatt J accepts that ‘the traditional foreign act of state doctrine is limited to acts done within the foreign state's territory and is subject to an exception imposed by public policy where serious violations of human rights are alleged’.Footnote ²¹⁴ In relation to non-justiciability, as opposed to foreign act of State, he concludes that where ‘acts of a foreign state … do not engage domestic legal rights’—this being the case, in his view, in Khan—then ‘the need to abstain from adjudication upon acts of a foreign state … [is] just as great when the acts occur or have effects outside the territory of the foreign state’ as when the acts occur inside that territory.Footnote ²¹⁵ Where, however, and again in relation to non-justiciability,‘a domestic legal right is engaged and the matter is within the court's competence, the court has a duty to decide the case whether or not it involves allegations of grave violations of human rights’.Footnote ²¹⁶

Much depends on what Leggatt J sees as the distinction between the foreign act of State doctrine and the doctrine of non-justiciability in Lord Wilberforce's Buttes Gas speech.Footnote ²¹⁷ In emphasizing this supposed distinction Leggatt J contradicts the Yukos Capital Court of Appeal's conclusion that Lord Wilberforce's ‘principle of non-justiciability’ is ‘the paradigm restatement of [the act of State] principle’.Footnote ²¹⁸ According to Leggatt J:

It is difficult to reconcile this analysis with Lord Wilberforce's insistence that ‘the question of title to the [drilling site] does not arise incidentally or collaterally: it is at the heart of the case’.Footnote ²²⁰ It seems Leggatt J (mis)reads Lord Wilberforce in Buttes Gas in order to make his speech seem consistent with a Luther v Sagor/Kirkpatrick/A Limited/Berezovsky approach to foreign act of State. He then makes the tension between the two approaches to the doctrine clear—‘there is conceptually an important distinction between what I will call the “traditional” [and what I have been referring to as the Luther v Sagor/Kirkpatrick approach to the] act of state doctrine and the principle which Lord Wilberforce preferred to describe as one of judicial restraint or abstention’Footnote ²²¹—and is unambiguous in his rejection of the Yukos Capital ‘silhouette’ non-definition of the Buttes Gas doctrine(s):Footnote ²²² ‘When a rule is said to be defined by its absence, there is reason to wonder whether there is in fact such a rule.’Footnote ²²³

Leggatt J treats Shergill as establishing, albeit in obiter dicta, a distinction between the ‘acts of sovereign states on the international political stage which are governed, not by law, but by power politics’ and the question of whether the ‘private law rights of individuals have been violated’,Footnote ²²⁴ and concludes that the claims in Rahmatullah are not barred by non-justiciability because they involve private law rights.Footnote ²²⁵ The clarity of this analysis masks the point, noted above, that whether a case involves inquiry into ‘the political acts of sovereign states’ depends on the characterization of the case. Leggatt J treats Rahmatullah as a case on private law rights rather than political acts and concludes that if ‘findings on whether violations of the claimants’ rights by agents of the US took place [are required] … the court would … be failing in its duty if it refused to adjudicate upon the allegations made’.Footnote ²²⁶ It is, however, entirely possible that if and when it hears the Rahmatullah foreign act of State appeal the Supreme Court will take the opposite view on the basis that the claim's factual basis involves UK/US cooperation in security and law enforcement operations in Iraq and that such operations and cooperation constitute ‘the political acts of sovereign states’.

It is here that the fact/validity distinction and, in particular, the collateral illegality interpretation of the Supreme Court's 2012 Rahmatullah decision, which I argued above ought to be applied in Belhaj, becomes key. That reading of Rahmatullah (2012) would mean that in a previous decision, and in a manner consistent with Lord Wilberforce's Buttes Gas distinction between legal issues that arise ‘incidentally or collaterally’ and those that are ‘at the heart of the case’,Footnote ²²⁷ the Supreme Court has established that act of State and non-justiciability considerations do not bar the English courts adjudicating on the legality of UK State conduct where the illegality of that conduct depends on allegations of collateral unlawful acts by a foreign State.Footnote ²²⁸ That argument, because it maintains that a fact/validity, collateral illegality approach to foreign act of State was part of the rationale for the Supreme Court's 2012 Rahmatullah decision, would overcome the Supreme Court's obiter dicta endorsement of a Buttes Gas/Sabbatino-type approach in Shergill and effectively overturn Yukos Capital.

When the Supreme Court hears the Belhaj and Rahmatullah appeals in November it will, for the reasons set out above, be faced with tensions between the Court of Appeal's decisions in A Limited and Berezovsky and Yukos Capital and Khan and between its 2012 decision in Rahmatullah and its obiter dicta on non-justiciability in Shergill.Footnote ²²⁹ Whilst the Supreme Court may choose to explain Rahmatullah (2012) as a GC4 decision and therefore prefer Shergill, in the context of the long-running tension in the English cases between the fact/validity approach of Luther v Sagor and Kirkpatrick and a Buttes Gas/Sabbatino-type emphasis on political considerations, the collateral illegality interpretation of Rahmatullah set out above deserves to be taken seriously.

In any event, whilst he decided the non-justiciability issues in the claimants’ favour, Leggatt J held that with the exception of the judicial review claim the common law claims were barred by the Crown act of State doctrine.Footnote ²³⁰ In line with his earlier judgment in Serdar Mohammed he formulated the Crown act of State doctrine on the basis of the two rules in Lord Wilberforce's Nissan v Attorney General speech.Footnote ²³¹ The first of these rules provides 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’ and the second rule, a ‘rule … of justiciability … prevents British municipal courts from taking cognisance of certain acts … [which have not been] accurately defined … [but which are caught by the] formulation …“those acts of the Crown which are done under the [Royal] prerogative in the sphere of foreign affairs”’.Footnote ²³²

Perhaps Leggatt J's approach to and application of the non-justiciability doctrine was unconsciously influenced by his approach to and application of the Crown act of State doctrine, just as Crown act of State considerations were an implicit factor in the foreign act of State decision in Buttes Gas.Footnote ²³³ The claimants’ victory on non-justiciability is, in light of Leggatt J's decision on Crown act of State, hollow and, because the Crown act of State doctrine excludes UK State conduct abroad from judicial inquiry for political reasons, it is impossible to see the overall outcome in Rahmatullah as the product of absolutely independent non-political judicial reasoning.Footnote ²³⁴

More generally, the outcome in Rahmatullah highlights the importance of the overlap between the foreign act of State, non-justiciability and Crown act of State doctrines and the extent of judicial deference to the British government.

3. The current position and its implications

In litigation involving allegations of unlawful conduct by UK State agents or agencies carried out abroad and in cooperation or concert with foreign State agents, foreign and Crown act of State considerations will overlap, as in Rahmatullah (2014). Foreign act of State considerations will effectively collapse into Crown act of State considerations because, regardless of the foreign act of State doctrine, the Crown act of State doctrine offers a defence to claims involving authorized conduct abroad by UK State agents and agencies.

In disputes between private parties involving foreign State conduct the extent to which not impugning the relevant foreign State conduct would pose difficulties for UK foreign relations will be an important factor in determining whether judges are prepared to impugn the conduct of the foreign State—see the analysis of Kuwait Airways above. Where a dispute between private parties involves foreign State acts and UK foreign policy decision-making judges may characterize the case in a way which makes a decision about the legality of foreign State action seem unavoidable, practically impossible, and legally impermissible because they wish to avoid the political controversy of indirect inquiry into the British government's conduct of foreign policy—see the analysis of Buttes Gas above.

Only where UK State agents or agencies engage in conduct within UK territory in cooperation or concert with foreign State agents who act abroad will the foreign act of State doctrine apply without the Crown act of State doctrine also applying—see the analysis of Belhaj above. As Khan demonstrates however (see above), the fact that the relevant conduct by UK State agents takes place within UK territory does not preclude judges from treating any potential for embarrassment to foreign States as a basis on which to bar the claim.

Where, as in Belhaj, the fact that a case involves claims against UK State agents acting within UK territory in cooperation or concert with foreign State agents who act abroad means that only the foreign and not the Crown act of State doctrines applies, the English rules on joint tortfeasance and choice of law, and the possibility of the claims being tried by closed material procedure, hinder the chances of the claim reaching trial and significantly limit the potential for political embarrassment to the British government—see the analysis of Belhaj above.

There have been attempts to challenge some aspects of this pattern of judicial deference to government by reversing Buttes Gas, endorsing Kirkpatrick, and moving back to the Luther v Sagor validity foundations of the English foreign act of State doctrine (see the analysis of A Limited, Berezovsky, Lucasfilm, the Supreme Court's 2012 Rahmatullah decision and Leggatt J's November 2014 Rahmatullah judgment above). In defiance of those attempts the current, prevailing formulation of the foreign act of State and non-justiciability doctrine(s) in Yukos Capital remains faithful to the vague, Sabbatino-type, Buttes Gas doctrine.

The overall implications of this state of affairs and of the foreign act of State, non-justiciability and Crown act of State doctrines in general for the politics, purpose, function and independence of English judicial reasoning in cases involving foreign and/or UK State acts demand review by the Supreme Court at the next available opportunity. It is, therefore, extremely undesirable for the Supreme Court to hear the foreign act of State appeals in Belhaj and Rahmatullah in November without joining them to the Crown act of State appeal in Rahmatullah.Footnote ²³⁵ The Court of Appeal's judgment on the Rahmatullah Crown act of State appeal is awaited and,Footnote ²³⁶ in my view, the Supreme Court should, first, postpone the hearing of the appeals in Belhaj and Rahmatullah until the Court of Appeal has delivered its judgment and, second, join the inevitable appeal from the Court of Appeal's decision to the foreign act of State appeals in Belhaj and Rahmatullah. Doing anything else risks perpetuating the current doctrinal incoherence.