Adjudicating Acts of State

Abstract

An apparent paradox lies at the heart of modern transnational human rights litigation. On the one hand, relevant actors in the international community have agreed that certain actions performed by individuals on behalf of states are so offensive to basic notions of human freedom and dignity that no state’s officials should be able to engage in them with impunity. On the other hand, the principles of sovereign equality and non-interference in the affairs of other states (absent U.N. Security Council authorization) continue to animate basic understandings of the structure of international society and the limits of international law.

One of the central puzzles for international law remains the problem of enforcement. Increasingly, where individual actors violate international legal norms, interested parties seek to use the judicial machinery of foreign states to impose legal consequences for such violations. I have referred to this phenomenon as “horizontal” enforcement because, legally speaking, states are situated on an equal or horizontal plane vis-à-vis each other. Some view horizontal enforcement as presumptively illegitimate, based on the idea that one sovereign cannot sit in judgment on the acts of another sovereign. Others maintain that recognition of the idea of “universal jurisdiction” to prescribe, adjudicate, and enforce prohibitions on certain types of specifically defined and universally condemned conduct (such as torture, genocide, war crimes, crimes against humanity, and piracy) necessarily entails an acceptance of horizontal enforcement by foreign states, in addition to “vertical” enforcement by international bodies. Courts and commentators continue to grapple with defining the circumstances under which horizontal enforcement may be warranted.

This contribution focuses on horizontal enforcement in the form of civil proceedings against current or, more often, former foreign officials. It focuses on the practice of the United States, although civil proceedings (and criminal proceedings joined by parties civiles) have also been brought against foreign officials in other countries. Part II sets forth the distinction between status-based (ratione personae) and conduct-based (ratione materiae) immunity for individual officials. Part III traces the late nineteenth-century origins of the act of state doctrine in U.S. courts to earlier, eighteenth-century understandings of conduct-based immunity. Although the act of state doctrine subsequently took on a different, narrower meaning in litigation involving foreign expropriations, Part IV concludes by suggesting that understanding the connection between early formulations of the act of state doctrine and claims to conduct-based immunity can help define the circumstances under which U.S. courts can and should impose legal consequences on foreign defendants for internationally unlawful conduct.

Keywords: act of state doctrine, conduct-based immunity, foreign official immunity, underhill v. hernandez, hatch v. baez