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THE POLITICAL UNCONSCIOUS OF THE ENGLISH FOREIGN ACT OF STATE AND NON-JUSTICIABILITY DOCTRINE(S)

Published online by Cambridge University Press:  09 July 2015

Matthew Nicholson
Matthew Nicholson*
Affiliation:
Lecturer in Public International Law, University of Southampton, M.C.Nicholson@soton.ac.uk.
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Abstract

This article reviews the history and politics of the English foreign act of State and non-justiciability doctrines in light of recent judgments in Belhaj and Rahmatullah. It argues that the doctrines have a political unconscious—a term borrowed from literary theorist Fredric Jameson—and that an appreciation of this should inform the Supreme Court's approach to the forthcoming appeals.

Keywords

BelhajButtes Gasforeign act of State doctrineKirkpatricknon-justiciabilitypolitical unconsciousRahmatullahYukos Capital
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 4 , October 2015 , pp. 743 - 781
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 Belhaj v Straw [2014] EWCA Civ 1394 (30th October 2014); Yunus Rahmatullah v Ministry of Defence [2014] EWHC 3846 (QB) (19th November 2014).

2 See Redress, ‘Belhaj v Jack Straw, former Head of Counter-Terrorism at MI6 Sir Mark Allen, The Secret Intelligence Service (MI6) and the Security Service (MI5)’ at <http://www.redress.org/case-docket/belhadj-v-jack-straw-and-others>; Zahra al-Rikabi (who made written submissions for some of the interveners in Belhaj), EJIL Talk, 3 November 2014, ‘English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims’ at <http://www.ejiltalk.org/english-court-of-appeal-rejects-de-facto-immunity-for-uk-officials-in-torture-claims/>.

3 See Rahmatullah (n 1) [19], which hints at the possibility of a ‘leapfrog’ certificate.

4 I am grateful to Karen Steyn QC, counsel for the Defendants in Rahmatullah and Belhaj, for confirming the current procedural position, as set out in this first paragraph, in both cases.

5 Lord Collins et al, Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet and Maxwell 2014) 122 [5–045]: ‘The expression “act of state” is … used in connection with the executive and legislative acts of foreign States. The expression is found in several contexts, and it may not be possible to extract a general principle which will apply to all of them.’

6 Buttes Gas v Hammer [1982] AC 888; Yukos Capital v OJSC Rosneft Oil Co (No. 2) [2013] 3 WLR 1329, 1374 [115]: ‘The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.’

7 See Mann, FA, ‘The Foreign Act of State’ (1986) 11 HoldLR 15, 34Google Scholar: ‘if and when English courts are faced with the critical case … it is hoped [that they will] be guided by legal reasoning rather than misconceived maxims of policy’. Something of this point is conveyed, in more moderate and politic terms, in Richard Hermer QC's submission, in Belhaj (n 1) [58], that ‘the rationale of the act of state doctrine is the separation of powers under the United Kingdom constitution … [he] submits that the courts may decline jurisdiction … where the claimants assert legal rights only in the rare circumstances of a lack of constitutional competence’.

8 F Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act (Routledge 1981) 4–5: ‘To imagine that, sheltered from the omnipresence of history and the implacable influence of the social, there already exists a realm of freedom – whether it be that of the microscopic experience of words in a text or the ecstasies and intensities of the various private religions – is only to strengthen the grip of Necessity over all such blind zones in which the individual subject seeks refuge, in pursuit of a purely individual, a merely psychological, project of salvation. The only effective liberation from such constraint begins with the recognition that there is nothing that is not social and historical – indeed, that everything is “in the last analysis” political. The assertion of a political unconscious proposes that we undertake just such a final analysis and explore the multiple paths that lead to the unmasking of cultural artifacts as socially symbolic acts’ (paragraph break suppressed). On the application of this analysis of ‘cultural artifacts as socially symbolic acts’ to law see 287: ‘The specific problems addressed by literary and cultural interpretation today may thus be expected to present suggestive analogies with the methodological problems of the other social sciences (it being understood that for Marxism, literary and cultural analysis is a social science)’, and 288: ‘In radical legal studies … the problem of the “text” is … vivid’. This article engages with ‘the problem of the “text”’, the texts being English act of state and non-justiciability judgments.

9 Collins et al. (n 5) 122 [5–044]: ‘The expression “act of state” is … used to describe executive acts which are authorised or ratified by the Crown in the exercise of sovereign power. The victim of such an act is in some circumstances denied any redress against the actor because the act, once it has been identified as an act of state, is one which the court has no jurisdiction to examine. The defence can be raised in regard to an act performed outside the United Kingdom and its colonies against the person or property of an alien … It is an open question whether the defence can apply to acts performed outside the United Kingdom and its colonies against the person or property of a British citizen. The defence is inapplicable to an act performed within the United Kingdom and its colonies against the person or property of a British citizen or of a non-enemy alien present here.’ (footnotes omitted); The separation between foreign and Crown act of State is reflected in the two pending Rahmatullah appeals, one on foreign act of State and the other on Crown act of State – see text to (nn 3 and 4).

10 See Shergill v Khaira [2014] 3 WLR 1.

11 See quotation from Mann in (n 7). See also Sales, P ‘Act of State and the Separation of Powers’ (2006) 11 JR 94Google Scholar, 97: ‘it might assist the rational development of the law for separation-of-powers-type analysis to be brought more to the forefront of the reasoning of the courts, so that the competing interests and policy considerations are balanced more explicitly and within a coherent intellectual framework’.

12 Mann, FA, ‘The Sacrosanctity of The Foreign Act of State’ (1943) 59 LQR 42Google Scholar: ‘the solution of these problems is not to be found in … principles of British constitutional law or Public International Law, nor in any such wide maxims of jurisprudence [i.e. the foreign act of State or non-justiciability doctrines] as have often been relied on for the purpose … but in established rules of private international law’.

13 Holland v Lampen-Wolfe [2000] 1 WLR 1573; Charles Duke of Brunswick v The King of Hanover (1844) 49 ER 724 (Court of Appeal); (1848) 9 ER 993 (House of Lords).

14 See Luther v Sagor [1921] 3 KB 532; Princess Paley Olga v Weisz [1929] 1 KB 718; Jones, D Lloyd, ‘Act of Foreign State in English Law: The Ghost Goes East’ (1981–82) VaJIntlL 433Google Scholar, 445; Mann (n 12) 53: ‘the rule would be that English Courts must recognize the validity and legality of official acts of a foreign State acting within its jurisdiction’.

15 On ‘one voice’ see Gur Corporation v Trust Bank of Africa [1987] 1 QB 599, 625, Nourse LJ referring to ‘[t]he rule that the judiciary and the executive must speak with one voice’, cited by Blair J in British Arab Commercial Bank v National Transitional Council of The State of Libya [2011] EWHC 2274 (Comm) [25]: ‘in the field of foreign relations, the Crown in its executive and judicial functions speaks with one voice’; Warbrick, C, ‘British Policy and the National Transitional Council of Libya’ (2012) 61 ICLQ 247CrossRefGoogle Scholar, 262, noting ‘the courts … deferential position … with respect to executive certificates’. On the prohibition on trespass into the conduct of foreign affairs see R (Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [37]–[57], accepting the existence of a general prohibition but noting, at [57], an exception where the court ‘conceives [there] to be a clear breach of international law, particularly in the context of human rights’; R (Gentle) v Prime Minister [2007] QB 689 (Court of Appeal), 712 [33], referring to ‘decisions of policy made in the areas of foreign affairs and defence which are the exclusive responsibility of the executive government’ and noting that, in Campaign for Nuclear Disarmament [2002] EWHC 277 the Administrative Court ‘rejected the submission that it would be possible to consider legal questions of international law while respecting the principle of non-justiciability of non-legal issues of policy [and] was in our opinion correct to do so’; R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin), per Cranston J at [53]: ‘The authorities clearly establish that the courts are “very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs … and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law”: R v Jones (Margaret) [2007] 1 AC 136 [30], per Lord Bingham … It is not the case that in the modern administrative State there are no no-go areas for the courts.’

16 Benvenisti, E, ‘Judges and Foreign Affairs: A Comment on the Institut de Droit International's Resolution on ‘The Activities of National Courts and the International Relations of their State’ (1994) 5 EJIL 423CrossRefGoogle Scholar, 425 and 426; See also Collins, L, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485CrossRefGoogle Scholar, 488: ‘It is true that in some cases in the House of Lords involving international law it can be said with confidence that the House reached a result that was consistent with the views of the government, or applied the views of the government’, and at 510: ‘What the cases [including Buttes Gas (n 6)] show, in those decisions which are not determined by the binding nature of the Foreign Office certificate, is what may be described as a sensitivity to foreign policy interests, and certainly not deference to the views or objectives of the executive.’

17 See J Raz, ‘The Rule of Law and Its Virtue’ in J Raz, The Authority of Law (Clarendon Press 1979) 210, 216–17, noting that the ‘independence of the judiciary’ implies that judgments will be reached on the basis of law rather than for ‘other reasons’. In foreign act of State cases those ‘other reasons’ might include the views or wishes of the government; see also McGoldrick, D, ‘The Boundaries of Justiciability’ (2010) 59 ICLQ 981CrossRefGoogle Scholar: ‘The principle of justiciability is something of a chameleon but it is important because it delineates the scope of judicial review and ultimately the rule of law.’

18 See (n 17) on ‘rule of law’.

19 See Batros, B and Webb, P, ‘Accountability for Torture Abroad and the Limits of the Act of State Doctrine: Comments on Habib v Commonwealth of Australia’ (2010) 8 JICJ 1153Google Scholar, 1167, commenting on the Australian act of state jurisprudence: ‘The act of state doctrine is a principle of domestic law, in some systems, that now focuses far more on protecting the internal distribution and separation of power within those states’; On the tension between rule of law considerations and the Crown act of State doctrine see Perreau-Saussine, A, ‘British Acts of State in English Courts’ (2007) 78 BYBIL 176Google Scholar, 252–4.

20 Belhaj (n 1) [81].

21 I Leghtas, 31 October 2014, ‘Dispatches: A Rare Victory for Justice’ at <http://www.hrw.org/news/2014/10/31/dispatches-rare-victory-justice>.

22 Rahmatullah (n 1) [171].

23 See text to (nn 202 and 235).

24 On the Buttes litigation see Insley, IAE and Wooldridge, F, ‘The Buttes Case: The Final Chapter in the Litigation’ (1983) 32 ICLQ 62CrossRefGoogle Scholar.

25 Buttes Gas v Hammer [1975] 1 QB 557, 570–571.

26 ibid 570.

27 ibid.

28 Buttes Gas v Hammer [1971] 3 All ER 1025, 1026; Buttes Gas (n 25) 571.

29 Buttes Gas (n 25) 570.

30 ibid.

31 ibid 571.

32 Buttes Gas (n 28) 1026; Buttes Gas (n 25) 571.

33 Occidental Petroleum Corp v Buttes Gas & Oil Co 331 F Supp. 92. Judge Pregerson was upheld on appeal—see Occidental of Umm al Qaiwain v Buttes Gas 461 F 2d 1261.

34 Occidental of Umm al Qaiwain v A Certain Cargo 577 F 2d 1196, 1204 (paragraph breaks suppressed); for background on the letter see Insley and Wooldridge (n 24) 67–8.

35 Occidental (n 34) 1205.

36 Buttes Gas (n 28) 1027.

37 Buttes Gas (n 25).

38 ibid 572.

39 ibid; Underhill v Hernandez (1897) 168 US 250; Brunswick (n 13, House of Lords).

40 Brunswick (n 13, House of Lords) 998–9.

41 Buttes Gas (n 25) 572.

42 Mann (n 12) 47–8. For a contrary view, with which I disagree on the basis of the analysis to follow, see Lloyd Jones (n 14) 438–9.

43 Brunswick (n 13, House of Lords) 1001.

44 Brunswick (n 13, Court of Appeal) 747.

45 Underhill (n 39); Mann (n 12) 50, commenting on Underhill: ‘It thus became settled law in the United States that an immunity ratione materiae is attached to official acts in the sense that, even in the absence of personal immunity of the defendant, he cannot be personally made liable for and that consequently it is impossible to ‘sit in judgment’ in respect of them. It was the true and only purport of Chief Justice Fuller's dictum, from which many later judges and writers have taken their text, to state and paraphrase that American rule.’

46 Underhill v Hernandez (1893) 65 Fed 577.

47 ibid 583 and 580.

48 Buttes Gas (n 25) 573.

49 Underhill (n 39) 252.

50 ibid 254; Mann (n 12) 49 quotes this passage, alongside the opening passage of the Supreme Court's judgment.

51 Buttes Gas (n 25) 573.

52 Luther v Sagor (n 14).

53 Buttes Gas (n 25) 573.

54 Luther v Sagor (n 14) 548, per Warrington LJ at 548 and see Scrutton LJ at 556; Oppenheimer v Cattermole [1976] AC 249 (see, in particular, Lord Cross at 278).

55 ibid 556, per Scruton LJ.

56 Princess Paley Olga (n 14).

57 WS Kirkpatrick & Co v Environmental Tectonics Corp 493 US 400.

58 Banco National de Cuba v Sabbatino 376 US 398; on variations and narrowing in the US act of State doctrine over time see H Fox and P Webb, The Law of State Immunity (3rd edn, Oxford University Press 2013) 55–7.

59 Roskill LJ refers to Sabbatino (n 58) in passing in Buttes Gas (n 25) 578 but, other than that, it is overlooked entirely in the 1974 Court of Appeal judgment.

60 Sabbatino (n 58) 427–428.

61 ibid 428.

62 ibid.

63 ibid.

64 ibid.

65 Fox and Webb (n 58) 55.

66 Kirkpatrick (n 57) 406.

67 ibid.

68 ibid 409.

69 Buttes Gas (n 25) 573.

70 Buttes Gas [1981] 1 QB 223, 242. Mann (n 7) 33, footnote 78, prefers Lord Denning's 1974 analysis to the 1980 Court of Appeal decision and 1981 Buttes Gas (n 6) House of Lords decision.

71 Buttes Gas (n 70) 260–261, per Brightman LJ.

72 ibid 254–256 and 265.

73 ibid 247–248.

74 ibid 253.

75 ibid 254–255; see text to (n 34) for extracts from the State Department letter.

76 ibid 253.

77 ibid 255.

78 Buttes Gas (n 6).

79 ibid 927.

80 ibid 901 and 906; Kirkpatrick (n 57) 406 and 409, and see discussion at (nn 67 and 68).

81 Buttes Gas (n 6) 926–927.

82 ibid 927–30.

83 ibid 930.

84 ibid. Collins (n 16) 507 notes ‘reliance was placed on Foreign Office letters to the rulers emphasising that the dispute involved international issues’ but maintains that ‘the result [reached by Lord Wilberforce] was perfectly understandable’.

85 On this ‘trap’ see text to (n 17).

86 David Williams, in his Guardian obituary of Lord Wilberforce—19 February 2003, ‘Lord Wilberforce’ at <http://www.theguardian.com/news/2003/feb/19/guardianobituaries.lords>—notes that ‘in the Lords he [Lord Wilberforce] claimed once that “by contrast with most of my judicial colleagues” he had “a little understanding of the ways in which government works from the inside”’. Quoting from Hansard—HL Deb 26 February 1996, vol 569, col 1298—the quotation referred to by Williams is, in full: ‘many years ago I spent a period in the upper reaches of the Civil Service. Therefore, by contrast with most of my judicial colleagues, I have perhaps a little understanding of the way in which government works from the inside’. Perhaps this time spent ‘in the upper reaches of the Civil Service’ had some bearing on Lord Wilberforce's approach to the issues in Buttes Gas.

87 Buttes Gas (n 6) 931.

88 ibid 932.

89 ibid 934: ‘Upon the much commented case of … Sabbatino … no extended discussion is here appropriate or necessary’; Collier, JG, ‘Transactions Between States – Non-Justiciability – International Law and the House of Lords in a Judicial No-Man's Land’ (1982) 41 Cambridge Law Journal 18CrossRefGoogle Scholar, 20: ‘[i]t cannot be said that Lord Wilberforce's demonstration of [support for his ‘general principle’] is very convincing, at least from the evidence he adduces’; Lloyd Jones (n 14) 476: ‘The effect of Buttes Gas is to establish unequivocally for the first time a principle of English law that renders certain sovereign acts of foreign States and Governments non-justiciable … While some support for it is also to be found in wide-ranging statements in a number of earlier English decisions … certain of these authorities are not relevant to the questions posed in Buttes Gas [and] of the remainder … many were decided on grounds other than the act of foreign state principle to which they give expression and … all could have been decided by the application of other, well established legal rules’, and 466: ‘Lord Wilberforce … [invokes] and [applies] a notion of non-justiciability akin to the U.S. political question doctrine, although there is no express statement to this effect.’

90 Brunswick (n 13); Blad v Bamfield 36 Eng Rep 993 (1674).

91 See text to (nn 41 and 42).

92 Buttes Gas (n 6) 932–933.

93 ibid 932. See Lloyd Jones (n 14) 437: ‘the decision may be explicable on the ground that Blad's acts were lawful by the lex loci commissi and therefore not actionable in England’. Lloyd Jones equivocates as to Lord Wilberforce's analysis of the case, however, noting, at 437, that Blad ‘appears to provide some support for the view that certain acts of foreign sovereigns are not justiciable in the English courts’.

94 Blad (n 90) 993.

95 Buttes Gas (n 6) 933; Cook v Sprigg [1899] AC 572, 578.

96 Cook (n 95). On the history of Pondoland see <http://www.sahistory.org.za/places/pondoland>.

97 Buttes Gas (n 6) 933.

98 Kamachee 19 ER 388 (PC).

99 ibid 411.

100 ibid 408.

101 ibid 411.

102 Perreau-Saussine (n 19) 194: ‘Precisely because the Privy Council was unable to find “any ground of legal right” for a seizure described … as “a most violent and unjustifiable measure”, the Company's actions had to be understood as non-justiciable acts of state.’

103 Buttes Gas (n 25) 570.

104 ibid 571.

105 On the definition of the Crown act of State doctrine see (n 9).

106 See Buttes Gas (n 6) 930–931, the only passage in the judgment on Crown act of State, in which Lord Wilberforce insists on the contrary view: ‘The action taken by officers of Her Majesty's Government, by means of H.M.S. Yarnton, and in bringing pressure to bear upon the ruler of U.A.Q., might fall into this [Crown act of State] category. They are not directly attacked in these proceedings, but it is part of Occidental's case that they were unlawful. However, the question whether these actions can be described as “acts of state” within this doctrine does not lie at the heart of the dispute and I do not propose to pursue it.’

107 See text to (n 35).

108 Buttes Gas (n 6) 938.

109 ibid 936.

110 See quotation from Benvenisti in text to (n 16).

111 A Limited v B Bank and Bank of X [1997] International Litigation Procedure 586, 587–588 [1]–[3].

112 ibid 588–590 [4]–[7].

113 ibid 592 [13], 592–593 [14] and 596–597 [26].

114 Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883.

115 Oppenheimer (n 54); See discussion of Luther v Sagor in text to (nn 54–56); Public policy arguments were addressed in Kuwait Airways—see ibid (Lord Nicholls) at 1080–1081 [24]–[26], ibid (Lord Steyn) at 1101 [113] and, in the Court of Appeal, ibid at 951 [244], 973 [322] and 986 [372]— but they are situated within a Buttes Gas (n 6) frame of analysis.

116 ‘inflexible and all-encompassing rule’—see quotation from Sabbatino in text to (n 64). For a critique of the Court of Appeal's judgment see Davies, M, ‘Kuwait Airways v Iraqi Airways Co: The Effect in Private International Law of A Breach of Public International Law by a State Actor’ (2001) 2 Melbourne Journal of International Law 523Google Scholar, 534: ‘[o]nce the English courts had accepted that the issue was justiciable … it became obvious that they could not recognise [the Iraqi government order], which would presumably have embarrassed the UK Government in its relations with the UN, if not in other diplomatic fora’.

117 Kuwait Airways (n 114) 971–972 [319].

118 ibid 1081 [29] and 1103 [114]; McGoldrick (n 17) 994–995 prioritizes the connection between public policy and international law over the political dimensions of Kuwait Airways.

119 Berezovsky v Abramovich [2011] 1 WLR 2290.

120 ibid 2297–2303 [6]–[33].

121 ibid 2295 and 2316 [87].

122 ibid 2317 [91], 2318–2320 [93]–[97] and 2320 [101].

123 ibid 2319 [95].

124 Lucasfilm Ltd v Ainsworth [2012] 1 AC 208, 215 [1]–[7].

125 ibid 229–238 [53]–[92].

126 ibid 231 [59].

127 ibid 237 [86].

128 Yukos Capital (n 6).

129 Republic of Ecuador v Occidental Exploration and Production Co [2006] QB 432; on commercial litigation and the act of state doctrine see Singer, M ‘The Act of State Doctrine of the United Kingdom: An Analysis, with Comparisons to United States Practice’ (1981) 75 AJIL 283CrossRefGoogle Scholar.

130 Yukos Capital (n 6).

131 ibid 1335 [1]–[11]

132 ibid 1337 [15].

133 ibid 1335 [4] and 1338 [17]–[18].

134 ibid 1335 [6] and 1338–1339 [19]–[23].

135 ibid 1347 [48] and 1353 [66].

136 See quotation in text to (n 64).

137 Yukos Capital (n 6) 1374 [115].

138 On Lord Wilberforce's mischaracterization see text (nn 90–102).

139 Yukos Capital (n 6) 1367 [101].

140 ibid.

141 In Berezovsky (n 119) 2319 [95], contra this assertion by the Yukos Capital Court of Appeal, the Court of Appeal stated that the Kirkpatrick elements of the A Limited decision are ‘part of its ratio’.

142 Yukos Capital (n 6) 1367 [101].

143 See discussion at around (n 111).

144 Berezovsky (n 119) 2319 [95]: ‘we are, therefore, now bound by authority to say that the act of state doctrine only applies to challenges to the validity of the act of state relied upon, unless there is subsequent higher authority to different effect’. The Berezovsky Court of Appeal, at 2319–2320 [96]–[97], did, however, express ‘some caution’ about A Limited in light of the (later) House of Lords Kuwait Airways (n 114) decision.

145 Yukos Capital (n 6) 1367 [102]. When, in Berezovsky (n 119) 2320 [97], Longmore LJ states that ‘I cannot think that any question of act of state can arise’ that should, in the context of the judgment as a whole, be read as an indication that the act of state doctrine was not applicable on Kirkpatrick grounds because facts rather than validity were at issue and not, as Yukos Capital maintains, that ‘the act of state doctrine was not involved’.

146 Yukos Capital (n 6) 1371 [110].

147 On the basis of the above analysis I disagree with Alex Mills’ broadly positive assessment of the decision as bringing clarity to the law on act of State—see ‘From Russia with Prejudice? The Act of State Doctrine and the Effect of Foreign Proceedings Setting Aside an Arbitral Award’ (2012) 71 CLJ 465CrossRefGoogle Scholar.

148 Yukos Capital (n 6) 1361 [86], endorsing the Privy Council's decision in Altimo Holdings v Kyrgyz Mobil [2012] 1 WLR 1804, and 1362 [87]: ‘judicial acts are not acts of state for the purposes of the act of state doctrine … Sovereigns act on their own plane: they are responsible to their own peoples, but internationally they are responsible only in accordance with international law and internationally recognised norms. Courts, however, are always responsible for their acts, both domestically and internationally. Domestically they are responsible up to the level of their supreme court, and internationally they are responsible in the sense that their judgments are recognizable and enforceable in other nations only to the extent that they have observed what we would call substantive or natural justice, what in the United States is called due process, and what internationally is more and more being referred to as the rule of law.’

149 ibid 1381 [133], 1382 [136].

150 Rahmatullah v Secretary of State for Defence [2013] 1 AC 614, 626–627 [3] and [4].

151 ibid 626–632 [1]–[27] and 632–635 [28]–[40].

152 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287, art 49.

153 ibid, art 45.

154 Rahmatullah (n 150) 643–644 [70], per Lord Kerr, with Lord Phillips at 651 [98] and Lord Reed at 654–655 [114] expressing their agreement.

155 ibid 645–649 [77]–[85], per Lord Kerr. Lord Carnwarth and Baroness Hale, 658 [131], dissented on this point.

156 See (n 67) text discussion.

157 See quotation at (n 79).

158 R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 3728 (Admin) (High Court); R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872 (Court of Appeal).

159 ibid [32] (High Court) and 879–880 [10]–[14] (Court of Appeal).

160 ibid [55] (High Court) and 886 [36–37] (Court of Appeal).

161 ibid (Court of Appeal) 886 [37].

162 ibid 889 [53].

163 ibid 883 [26] noting that ‘[n]either party has sought to question the court's analysis [in Yukos Capital] of the case law’.

164 Belhaj v Straw [2013] EWHC 4111 (QB).

165 ibid [29].

166 ibid [31].

167 ibid [31] applying Fish & Fish v Sea Shepherd [2013] 1 WLR 3700, 3712 [43]–[45], per Beatson LJ. There is a tension between Simon J's application of the English law on common design to claims which he concludes are governed by foreign law (see text to n 173) and Leggatt J's view, in Rahmatullah (n 1) [33]–[34], that where a claim is governed by foreign law it cannot be assumed that foreign law on ‘joint or accessory liability in tort’ is the same as the English law on common design (and see also Leggatt J at [39]–[40]).

168 Belhaj (n 164) [146].

169 ibid [146].

170 ibid [150].

171 ibid. [147].

172 ibid [147] and [150].

173 ibid [133] and [144].

174 Belhaj (n 1) [31], [51]–[133], and [134]–[160].

175 ibid [81], relying, in particular, on Oppenheimer (n 54)—see [82]— and, at [83], on Kuwait Airways (n 114).

176 ibid [128] and see [131].

177 ibid [131].

178 ibid [69]–[77] and [128] and see also Belhaj (n 164) [84]–[86] and [116]–[117].

179 Belhaj (n 1) [120].

180 ibid [56]–[57]; Shergill (n 10).

181 Shergill (n 10) 15 [40].

182 ibid.

183 See text (nn 81–84).

184 The Court of Appeal's Belhaj judgment—(n 1) [1]—notes that it ‘has been drafted principally by Lloyd Jones L.J.’. Lloyd Jones LJ's judicial biography at <https:// www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/coa-biogs/> notes that ‘from 1975 to 1991 he was a Fellow of Downing College, Cambridge’, as was the author of the 1981 article in the Virginia Journal of International law – see Lloyd Jones (n 14) 433, first note: ‘Fellow of Downing College, Cambridge’. The mild critique of Lord Wilberforce's Buttes Gas speech in that 1981 article matches the Court of Appeal's refusal to endorse or reject the Buttes Gas doctrine – the line that the Court of Appeal walks in its Belhaj judgment. It seems that Lloyd Jones LJ was the author of the 1981 article and, if that is so, he would appear to be beginning to amend the English foreign act of State doctrine in line with the views set out in his 1981 article.

185 See text at (nn 173–174).

186 Belhaj (n 1) [134]–[158].

187 Belhaj (n 164) [130]; ibid [145]–[146].

188 Belhaj (n 1) [147]–[148].

189 See text (n 167).

190 Kirkpatrick (n 57) 406.

191 Fish & Fish (n 167), and see text to (n 167) on the joint tortfeasance rules; for the application of Fish by the Court of Appeal see Belhaj (n 1) [75]; On the tension between the approach to the applicability of the English law on common design in Belhaj and Leggatt J's reasoning in Rahmatullah (n 1) see (n 167); Since Belhaj was decided by the Court of Appeal the Supreme Court has decided Fish & Fish on appeal—see [2015] UKSC 10. Whilst the Supreme Court's decision reverses the outcome in the Court of Appeal it does not change the test on joint tortfeasance—see Lord Toulson [21] and Lord Neuberger [55] in particular.

192 Collins et al (n 5) 1948 [35–108] emphasize that ‘[t]he strength of the case for displacement of the general rule will clearly depend on the circumstances of the particular case’.

193 Belhaj (n 1) [158].

194 The potential for a ‘closed material procedure’ trial in Belhaj is highlighted in Leigh Day, 29 May 2012, ‘Belhaj lawyers condemn government's secret trials bill’ at  <http://www.leighday.co.uk/News/2012/May-2012/Belhadj-Lawyers-Condemn-Government-s-Secret-Trial>; and by A Patrick, 7 November 2014, ‘Suing the state: judicial competence, restraint and redress in Belhadj’ at <http://ukconstitutionallaw.org/2014/11/07/angela-patrick-suing-the-state-judicial-competence-restraint-and-redress-in-belhadj/>.

195 Justice and Security Act 2013 (JSA 2013), Pt 2; A Tompkins, ‘Justice and Security in the United Kingdom’ (2014) 47 Israel Law Review 305, 309: ‘The core change made by the Justice and Security Act 2013 is to extend the availability of closed material procedure … and special advocates generally to civil litigation in the UK.’

196 JSA 2013, sections 6, 8 and 11.

197 ibid section 9; The Civil Procedure Rules (CPR), Pt 82.11.

198 JSA 2013 sections 9(4) and 11; CPR 82.6, 82.16.

199 JSA 2013 section 11(2)(d); CPR 82.16

200 On Buttes Gas and public interest immunity see discussion in text from (n 71) onwards.

201 See text to (n 21).

202 On that suggestion see text at (nn 20–23).

203 Rahmatullah (n 1) [1]–[5]

204 ibid [22].

205 ibid [10].

206 ibid [11]–[15].

207 ibid [6] [228]; on the judicial review action see ibid [8]–[9].

208 ibid [22]: ‘For the purposes of the preliminary issues, the relevant claims in tort made by Mr Rahmatullah and the three Iraqi civilian claimants’, and see [227]–[233] on the judicial review claim.

209 ibid [19].

210 ibid.

211 ibid [177].

212 See text to (nn 174 and 176).

213 Rahmatullah (n 1) [177], and see [116]–[117], [140]–[145] and [177]–[178].

214 ibid [177].

215 ibid [178].

216 ibid.

217 ibid [116], [120] and [122].

218 ibid [123] and see text to (n 135).

219 ibid [120] and see [119] for context.

220 See text to (n 79).

221 Rahmatullah (n 1) [123].

222 On the Yukos Capital ‘silhouette’ non-definition see text to (n 137).

223 Rahmatullah (n 1) [134].

224 ibid [141].

225 ibid [141] and [173].

226 ibid [175].

227 See discussion at (n 157).

228 On the precedential value of Supreme Court decisions see Supreme Court Practice Direction 3 [3.1.3] at <https:// www.supremecourt.uk/procedures/practice-direction-03.html>.

229 As noted at (n 4), I am grateful to Karen Steyn QC for confirming the current procedural situation in Belhaj and Rahmatullah.

230 Rahmatullah (n 1) [179] ff.

231 ibid [180]–[181]; Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB); Nissan v Attorney General [1970] AC 179. The appeal against Leggatt J's Serdar Mohammed Crown act of State judgment was heard by the Court of Appeal, together with the appeal against Leggatt J's Rahmatullah Crown act of State judgment, in February 2015 and judgment is awaited (thanks to Karen Steyn QC for confirming this).

232 Rahmatullah (n 1) [181], quoting Lord Wilberforce in Nissan (n 232) 231.

233 See text to (n 106).

234 See text to (n 23).

235 On the current procedural situation in Belhaj and Rahmatullah see text to (nn 2–4).

236 As noted at (n 232) the Rahmatullah Crown act of State appeal was heard alongside the appeal against the Crown act of State judgment in Serdar Mohammed (n 232).

237 Jameson (n 8) 4–5, also quoted in (n 8), (paragraph break suppressed).

238 ‘social contradiction’—ibid 68.

239 ‘strategies of containment’—ibid 38.

240 Jameson (n 8) 68: ‘It seems useful … to distinguish, from [the] ultimate subtext which is the place of social contradiction, a secondary one, which is more properly the place of ideology, and which takes the form of the aporia or antinomy’; C Baldack, The Oxford Dictionary of Literary Terms (OUP 2008) 21–2: ‘the term [aporia] is frequently used in the sense of a final impasse or paradox: a point at which a text's self-contradictory meanings can no longer be resolved, or at which the text undermines its own most fundamental presuppositions.’

241 Jameson (n 8) 68.

242 Those questions are set out in the text at around (n 6).

243 Yukos Capital (n 6) 1362 [87]: ‘Courts … are always responsible for their acts, both domestically and internationally. Domestically they are responsible up to the level of their supreme court, and internationally they are responsible in the sense that their judgments are recognizable and enforceable in other nations only to the extent that they have observed what we would call substantive or natural justice, what in the United States is called due process, and what internationally is more and more being referred to as the rule of law’.

244 ‘absent cause’—Jameson (n 8) 68: ‘the social contradiction addressed and “resolved” by the formal prestidigitation of narrative must, however reconstructed, remain an absent cause, which cannot be directly or immediately conceptualized by the text’.

245 See Mann (n 7), Mann (n 12) and, to a lesser extent, Lloyd Jones (n 14), for example.

246 See Mann (n 7) 34: ‘if and when English courts are faced with the critical case … it is hoped [that they will] be guided by legal reasoning rather than misconceived maxims of policy’, also quoted at n 7 above. And see, in similar terms, opposing law to politics, Sim, C, ‘Non-Justiciability in Australian Private International Law: A Lack of “Judicial Restraint”’ (2009) 10 Melbourne Journal of International Law 102Google Scholar, 140: ‘the judiciary must prioritise of private rights over political concerns and maintain access to the courts’; Alderton, M, ‘The Act of State Doctrine: Questions of Validity and Abstention from Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1, 25–6Google Scholar: ‘Courts should not too eagerly relinquish their judicial function simply because a matter involves a ‘weighty’ matter of state. In too many cases have courts refrained from adjudicating upon matters which are properly within jurisdiction, often placing undue reliance on broad notions found in long-outdated case law.’

247 See the discussion of Kuwait Airways and Luther v Sagor at (nn 114–115).

248 Jameson (n 8) 288.

249 ibid.

250 On the prioritization of representation over control in legal practice see my article, ‘Walter Benjamin and the Re-Imagination of International Law’, forthcoming (2016) in Law and Critique.