Document Type

Article

Disciplines

International Law

Abstract

The issue of whether to recognise and give effect to a foreign decree, resolution 369, issued by the Revolutionary Command Council of Iraq, fell to be considered by England's House of Lords in Kuwait Airways Corp. v. Iraqi Airways Co.' In dismissing an argument based on the "act of state" doctrine,2 the House of Lords significantly clarified and extended the ambit of exceptions to this doctrine, which operates to cause a domestic court to decline to adjudicate a foreign decree.

While closely associated with the international legal norm of state immunity, which acts as a preliminary procedural bar to prosecution, the act of state doctrine is a domestic rule, which rests on two legs. First, it seeks to uphold the principle of sovereign equality, and second, it recognises that certain matters are best resolved through political rather than legal means. Thus, the court of a forum state will not pronounce upon the legislative or executive acts of a foreign state which operates within that foreign state's own territory. This derives from the prudential judicial desire to defer to executive concerns in conducting foreign relations by treating certain issues as non-justiciable. Its application is decided in the course of considering the merits of the case. It thus posits a field of foreign state activity, with respect to the exercise of sovereign authority, which lies beyond the adjudicatory competence of a domestic tribunal, as a matter of judicial selfrestraint. In its classic U.S. incarnation enunciated in Banco Nacional de Cuba v. Sabbatino,3 the act of state as a rule of U.S. Constitutional law seeks to preserve judicial integrity by avoiding judicial interference in the executive domain, as a discordant judgment could embarrass the executive position on matters relating to a foreign state, and also exacerbate inter-state tensions.

The Kuwait Airways decision manifests a cosmopolitan outlook in demonstrating some degree of congruence between domestic and international public policy, strengthening international solidarity insofar as it identifies and buttresses shared "communitarian" international legal values.' This decision appears consistent with the increasing judicial openness towards international law in influencing, or at least affirming, its resonance with common law principles or values in certain Commonwealth jurisdictions.

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