Supreme Court of United Kingdom: Two human rights cases have been decided by the UK Supreme Court against UK officials. The respondents (Behlaj and Rahmatullah) sought a declaration of illegality and damages arising from what they contend was the participation of the UK officials in their unlawful abduction, kidnapping and removal to Libya in March 2004. The allegations were that they were unlawfully detained and/or mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft in which the UK officials were also involved. The claim pleaded the causes of action of false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, negligence and misfeasance in public office.
It was argued on behalf of the UK officials that the court couldn’t decide the assistance claims without ruling on the legality of other countries’ actions and pleaded for dismissing the cases on grounds of state immunity and act of State. The act of state question involved here was that whether an English court should abstain from adjudicating upon sovereign acts committed by a foreign state, even outside its own territory. Another question of state immunity was if the suits against UK officials would indirectly implead foreign states because in order to maintain claims against the officials, it was necessary to show that the other countries too acted unlawfully.
The High Court in Behlaj’s case had held that there was no state immunity but that the claims were barred being based on foreign acts of state. The Supreme Court affirmed the decision on state immunity but held the doctrine of foreign act of state as limited to acts occurring within the jurisdiction of the relevant foreign state and subject to a public policy exception for grave human rights violations. In Rahmatullah’s case, the High Court held that none of the doctrine would apply.
State Immunity question:-The Court observed that the State immunity is based on the sovereign equality of states and international comity. The appellants(government officials) submitted that state immunity covers cases where it is integral to a claim against United Kingdom authorities to prove that foreign officials acted contrary to their own laws under the concept of ‘indirect impleading’. They sought to rely on the concepts of “interests or activities” in Article 6(2)(b) of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. On hearing the appellants, the Court concluded that the relevant foreign states will not be affected in any legal sense by proceedings to which they are not party.
The Court held that no foreign states were directly impleaded here because of the simple reason that no claims were brought against them. It stated that because no legal position of the foreign states would e affected by the judgment, it can’t be said that they are impleaded. The Court distinguished from the cases cited before it in which foreign states were indirectly impleaded for the reason that in those cases, the claims involved property in which the states had an interest and in the present case, appeals did not involve any issues of proprietary or possessory title. ‘All that can be said is that establishing the appellants’ liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts’, the Court said. The concurring judges negatively answered the question saying the foreign states are neither the parties nor the court’s decision on the issues raised would bind them. It held that a suit against a domestic official is not necessarily a suit against a foreign state to which state immunity attaches and the plea failed.
Act of State Doctrine:-Lord Mance identified three types of foreign act of state rule recognised in current English Jurisprudence and it was also agreed upon by Lord Neuberger. They said that the first is a rule of private international law, whereby a foreign state’s legislation is in normal circumstances recognised and treated as valid, so far as it affects movable or immovable property within that state’s jurisdiction. Another rule, it was said that it precluded a domestic court from questioning the validity of a foreign state’s sovereign act in respect of property within its jurisdiction, at least in times of civil disorder. The Court stated that even if this rule were, however, viewed as extending more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts. Third rule states was that a domestic court will treat as non-justiciable or will refrain from adjudicating on or questioning certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state and non-justiciability would depend on case to case like English Law would take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture. Further, it was stated by Lord Mance that the circumstances in this case did not lead to a conclusion that the issues are non-justiciable. Lord Neuberger underlined the limits of the foreign act of state doctrine and said that a public policy exception qualifies the first and second rules; and, if necessary, also the third rule.
Lord Sumption identified in the case law two relevant principles: ‘municipal law act of state’ corresponding generally with the first two rules stated by Lord Mance, and ‘international law act of state’ corresponding generally with the third rule. Municipal act of state, he said is confined to acts done within the territory of the relevant foreign state whereas international law act of state required the English courts not to adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states. He said that the foreign act of state doctrine could not be applied to detention and torture because both “exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century.”
The Bench observed that it was unnecessary to decide whether:
a) the UN Convention against Torture requires any modification of the doctrine of foreign act of state to give a universal civil remedy for torture;
b) Article 6 of the European Convention on Human Rights preclude reliance on state immunity or foreign act of state; or to say more than that the appellants would face difficulties on each point.
As a result, it was finally held that state immunity was no bar to the claims, and the appellants had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state to defeat the proceedings. The appeals of Government were dismissed and directions to continue the trial were given. [Belhaj v. Straw and Rahmatullah v. Ministry of Defence, [2017] 2 WLR 456 : [2017] UKSC 3, decided on 17-01-2017]
