Search

‘Act of State’ doctrine absolves state action from judicial review by a foreign court. Indeed, it is settled law that there is no cause of action that will make a foreign state liable in domestic courts. The doctrine has developed in a manner which focuses on the sovereign nature of an act rather than the status of the person who committed it. In the UK, recent judgments have evaluated the honesty and fairness of dealings in the public policy context. The courts have moved beyond competence and restraint, and state officials who have breached a fundamental principle of international law have faced judicial scrutiny. Courts have developed the concept of a qualified state immunity for the actions of officials that are contingent on human rights. This paper argues that courts should develop a doctrine that allows judicial activism when wrongs are committed by states that infringe customary international law. [ABSTRACT FROM PUBLISHER]

The article focuses on the materials and information required for the construction of the international law in 2012 in Great Britain. Topics discussed include peremptory norms, soft law and various laws related to the treaties. It also discusses customs, general principles of law and unilateral acts along with equity and comity.

In Pinochet (No. 3), the UK House of Lords ruled that former Heads of State can be held accountable for the jus cogens crime of torture in foreign domestic courts, notwithstanding their pre-existing functional immunity. Since then, national courts have been seen as an avenue not only for prosecuting alleged torturers but also for seeking compensation for their victims. In a spate of cases before regional and national courts, including the House of Lords, claimants have argued that foreign States and their officials are no longer immune from private suits alleging torture. These arguments have been consistently rejected, with judicial majorities stressing that the longstanding right of State immunity from civil proceedings can only be overridden by positive law or impermissible conflict with a jus cogens norm. This article seeks to demonstrate that the international law principles and methodology the courts applied in deciding the civil claims cases are also applicable to Pinochet (No. 3) and irreconcilable with its outcome. When the way in which legal argument is framed determines the result, the real dispute is revealed to lie between competing methodologies of legal argument and competing concepts of justice and State consent in international law. [ABSTRACT FROM AUTHOR]