British Acts of State in English Courts

• Published in: British yearbook of international law Vol. 78; no. 1; pp. 176 - 254
• Main Author: Perreau-Saussine, Amanda
• Format: Journal Article
• Language: English
• Published: Oxford Oxford University Press 01.01.2008; Oxford Publishing Limited (England)
• Subjects: Accountability; Action; Constitutional law; Excuses; Extraterritoriality; Government; International law; International relations; Judges & magistrates; Jurisdiction; Jurists; Legality; Litigation; Nationalism; Noncitizens; Public good; Public law; State courts; Studies; United Kingdom > UK
• ISSN: 0068-2691; 2044-9437
• DOI: 10.1093/bybil/78.1.176

Underlying act of state doctrines is the idea that the survival of a community may depend upon treating foreigners, and perhaps citizens, in ways that would usually violate legal or even moral rules. Acts of state are actions such as these, taken in the name and the interests of the state to further the public good: when the act accuses, the result excuses. This essay offers an account of act of state doctrines as applied by English courts to actions of the British government overseas. It is a study of domestic act of state doctrines concerning actions of the British state, as distinct from doctrines concerning the incompetence of English courts to adjudicate on the validity or legality of the acts of foreign states. The subject might seem arcane, but the case law sheds light on enduring questions concerning the nature of English public law and its relationship with public international law, as well as on the question of the availability of remedies against the Crown. Since this study concerns the applicability of English act of state doctrines to government action overseas, it must address the problematic area of constitutional law, that of the status of rules of international law: again, British politicians, jurists and judges have long disagreed on the ways (if any) in which rules of international law form constraints enforceable in English courts on government action.