Act of State Doctrine

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The Act of State Doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation.

The doctrine is not required by international law (neither customary international law nor treaty law), but it is a principle recognized and adhered to by United States federal courts. Its aim is not to protect other nations' sovereignty by intervention from the U.S.^{[citation needed]} but rather to protect the US Executive's prerogatives in foreign affairs from being frustrated by a decision issuing from U.S. courts.

The Act of State Doctrine enters consideration most often in cases where a foreign sovereign has expropriated the property of a U.S. national located in that foreign territory (e.g. through nationalization). Rather than pursuing recourse through the courts, United States nationals are to take their claims against foreign sovereign governments to the Executive so that the government can either espouse the claims of all U.S. nationals as a group or seek recourse through diplomatic channels. The United States employs the Act of State Doctrine more broadly and with more frequency than other countries.^{[citation needed]}

1 Background
2 Later developments
- 2.1 Banco Nacional de Cuba v. Sabbatino
- 2.2 Second Hickenlooper Amendment
3 Notes
4 External links

[edit] Background

The Act of State Doctrine, which arose out of state practice in the 17th Century, entered into American jurisprudence in the case Underhill v. Hernandez, 168 U.S. 250 (1897). In an 1892 revolution, General José Manuel "Mocho" Hernández expelled the existing Venezuelan government and took control of Ciudad Bolivar, where plaintiff Underhill lived and ran a waterworks system for the city. Underhill, an American citizen, repeatedly applied to Hernandez for an exit passport, but his requests were refused, and Underhill was forced to stay in Ciudad Bolivar and run the waterworks. Hernandez finally relented and allowed Underhill to return to the United States, where he instituted an action to recover damages for his detention in Venezuela. In finding for the Defendant, a New York Court determined that Hernandez had acted in his official capacity as a military commander so his actions were those of the Venezuelan government. The Court therefore refused to hear Underhill's claim against the government based on the Act of State Doctrine. The Court reasoned, "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory." ^[1]

[edit] Later developments

In later decisions, the courts have expounded on the principles and policies underlying the Act of State Doctrine.

[edit] Banco Nacional de Cuba v. Sabbatino

In 1964, the United States Supreme Court applied the Act of State Doctrine in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). The case arose when Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. However, despite the loss suffered by United States nationals, the Supreme Court upheld the Act of State Doctrine by assuming the validity of Cuba's domestic action and therefore rejected the claim of US nationals against Cuba for their lost investments.

The Court in Banco Nacional de Cuba v. Sabbatino stated that although the Doctrine is not found in the Constitution, explicitly or implicitly, it does have constitutional underpinnings in the concept of separation of powers. The Supreme Court reasoned that because the Executive had exclusive authority to conduct foreign affairs with other nations on behalf of the United States, disputes arising from the official actions of foreign sovereign powers should not be settled by the Judiciary because those decisions could interfere with the Executives' conduct of foreign affairs. ^[2]

[edit] Second Hickenlooper Amendment

In response to the outcome of the case, Congress enacted 22 U.S.C. § 2370, more commonly referred to as the "Second Hickenlooper Amendment," named after the bill’s sponsor, Bourke B. Hickenlooper, an outraged Iowa Senator. Generally, under the Hickenlooper Amendment, courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign. However, one provision of the Amendment instructs the courts to continue applying the Doctrine wherever the Executive tells them to. Essentially, under this Amendment, the Executive has the authority to decide on a case-by-case basis whether the Judiciary has the power to hear a case.

The judiciary has interpreted the Amendment narrowly so that it can continue to apply the Act of State Doctrine in many cases. For instance, the Second Circuit held that the Amendment only applied if the property involved in the foreign act was inside the United States. Also, the court in Hunt v. Coastal States Gas Producing Co. found the Hickenlooper Amendment applied only where there are claims to title of property, excluding breach of contract claims.