The Act of State Doctrine Down Under

In a string of decisions from Underhill v. Hernandez (1897) to W S Kirkpatrick Co., Inc. v. Envt’l Tectonics Corp., Int’l (1989), the U.S. Supreme Court has declined to scrutinize certain sovereign acts of foreign states within their own territory under the “act of state doctrine.”  The source and scope of this doctrine have never been crystal clear.  In Banco Nacional de Cuba v. Sabbatino (1964), the Court suggested (somewhat cryptically) that the doctrine has “constitutional underpinnings” in that it reflects “the proper distribution of functions between the judicial and political branches of Government on matters bearing upon foreign affairs.”  Some commentators have suggested that the doctrine operates like a choice-of-law rule, requiring U.S. courts to accept the validity of a foreign act of state based on the foreign state’s own law rather than U.S. or international law (e.g., Restatement on Foreign Relations § 443, reporters’ note 1).  Others have characterized the doctrine as a prudential principle of judicial self-restraint.  Still others have endeavored to clarify the doctrine by reference to concerns such as the potential adverse impact upon foreign relations, whether the relevant foreign officials remain in power, and the degree of international consensus regarding the norms allegedly violated.  Despite occasional predictions of the doctrine’s imminent demise, lower federal courts continue to invoke and apply the doctrine.      

   

Those interested in this area of federal jurisprudence would do well to read the highly anticipated ruling handed down last week by the Australian Federal Court in Habib v. Commonwealth of Australia.  

 

The factual allegations in Habib are arresting in their own right.  The plaintiff, Mamdouh Habib, an Australian national, alleges that he was apprehended in Pakistan in October 2001, and detained thereafter for several years at interrogation facilities in Pakistan, Egypt, Afghanistan, and Guantanamo Bay, Cuba.  While in detention, Habib allegedly suffered repeated beatings, electric shocks, water boarding, suspension from chains, sleep deprivation, threats of sexual assault, and other inhumane treatment at the hands of Pakistani, Egyptian, and American interrogators—all with the alleged knowledge and consent of Australian officials. 

 

Rather than sue U.S. or Pakistani interrogators directly, Habib elected to bring suit against the Australian government, arguing that Australian officials had committed misfeasance of public office and intentional infliction of indirect harm by aiding and abetting torture and cruel, inhuman and degrading treatment.  In response, the Australian government categorically denied the complicity of its officials in abusive interrogation, and it invoked the act of state doctrine, arguing that Habib’s claims are unavailing because the act of state doctrine precludes Australian courts from determining the legal validity of Pakistani, Egyptian, and American interrogation practices. 

 

Without attempting to recount the various opinions of the Federal Court (Black CJ, Perram J, and Jagot J) in detail, I would note simply that the court unanimously rejected the government’s argument that the act of state doctrine barred Habib’s claims without definitively addressing the docrine’s theoretical underpinnings.  The panel’s three opinions are interesting, in part, because they draw extensively on the U.S. Supreme Court’s jurisprudence, including lengthy excerpts and discussion of Underhill, Sabbatino, and Kirkpatrick.  It is hard to imagine a U.S. court devoting comparable attention to Australian case law as a guide to the contours of the act of state doctrine.  (For a more detailed summary of the February 25, 2010 Habib ruling, take a look at the Commentary of Ben Batros and Philippa Webb posted on Thursday at EJIL: Talk!)