by Wilton H. Strickland

I recently had the pleasure of serving as a judge in the Philip C. Jessup International Law Moot Court Competition, something I began doing all the way back in 2001. This year was unique because the United States held a unified national round in Atlanta preceding the international round in Washington, DC. Ordinarily, law schools within the United States compete in regional rounds before advancing, so I was able to interact with a large number of other judges and teams in Atlanta before moving on to judge in DC. It made my 25th anniversary of judging quite memorable. 

This year’s problem dealt with several interesting legal issues, one of which was a private lawsuit in one country against a corporation owned and operated by the government of a foreign country. The foreign corporation moved to dismiss the lawsuit under a rule of civil procedure that limited the court’s power according to “exceptions recognized in international law.” One well-known exception is sovereign immunity, whereby one country’s government cannot be sued in the courts of another country absent narrow circumstances. Despite making this argument, the motion to dismiss was denied, teeing up the dispute before the International Court of Justice to determine whether the corporation truly should be subject to the lawsuit. 

The oralists did an excellent job of discussing sovereign immunity, how it applies, when it applies, and whether it should apply here. In the back of my mind, though, I couldn’t help but think of another doctrine of international law that might defeat the lawsuit, a doctrine that few people pay attention to anymore: the act of state doctrine. Whenever a team struck me as particularly good, I tossed out this phrase like a hand grenade to see if an oralist was familiar with it. If not, I instructed the oralist to ignore it and continue, and I did not hold it against him or her. If so, however, I asked the oralist to explain what the doctrine is and why it should or should not apply. Only one oralist knew what it is, a young man at the national round in Atlanta. After we discussed the nature of the doctrine, I asked him whether it bars the lawsuit even if sovereign immunity does not. His answer was perhaps the best I could expect under the stressful circumstances, namely that the doctrine was beyond the scope of the parties’ pleadings and had been waived. Although this was not a substantive response, it was a competent one that still impressed me. Nobody at the international round was familiar with the doctrine whenever I brought it up, so I figured I would shed some light on it here.

The act of state doctrine holds that the courts of one country (or “state”) will not question the legitimacy of the acts of a foreign state that occurred within that foreign state’s own territory. This is similar to sovereign immunity but narrower (because it applies within a limited territory) and more forceful (because it is not subject to the loopholes pertaining to sovereign immunity). In the Jessup problem, an argument could have been made that the doctrine applied because the allegedly wrongful acts had taken place in the territory of the foreign country, meaning that the courts of the forum state could not issue a ruling on those acts.

A controversial decision by the U.S. Supreme Court applied this doctrine to shield the Cuban government from a lawsuit alleging wrongful confiscation of property, Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964). The confiscation was of Cuban sugar and the proceeds of its sale by an American-owned company. According to the Court, it made no difference whether the confiscation violated international law for being discriminatory and uncompensated, since important considerations precluded questioning the legitimacy of the acts of the Cuban government within Cuba’s own territory:

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. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. . . .

To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations. . . .

The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. . . .

The text of the Constitution does not require the act of state doctrine; it does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state. The act of state doctrine does, however, have “constitutional” underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.

Sabbatino, 376 U.S. at 416-18, 422, 423 (citations omitted).

So, Sabbatino respects not only the sovereignty of foreign countries, but also the independence of other branches of our own government (who have the distinct prerogative of managing foreign affairs).

Sober legal reasoning of this sort drew a swift political backlash. Congress passed the Second Hickenlooper Amendment to prohibit courts from using the act of state doctrine in cases concerning foreign expropriation of property (unless the executive branch requested the doctrine’s application). In other words, Congress was forcing the courts to tackle these international disputes rather than accepting its own responsibility for them, thereby engaging in a game of “hot potato.” The doctrine persists in United States law, though it remains subject to constraints in the Foreign Sovereign Immunities Act. See, e.g., Republic of Hungary v. Simon, 604 U.S. 115, 119-22 (2025).

The act of state doctrine is the underappreciated cousin of sovereign immunity. In my view, however, it remains worthy of discussion and could prove quite useful in court. Even moot court.