Act of State Doctrine

2020 ◽  
Author(s):  
Alfonso Iglesias
Keyword(s):  
International Law ◽  
Separation Of Powers ◽  
General Rule ◽  
Executive Branch ◽  
The State ◽  
The Political ◽  
Sovereign State ◽  
National Courts ◽  
Foreign State ◽  
Political Question

According to the act of state doctrine, national courts must refrain from prosecuting the validity of official acts carried out by a foreign state within its own territory, except if it commits violations of international norms with broad consensus of international society, such as, for example, a case of genocide. Both its judicial self-restraint character and its reflection in the judicial deference to the executive branch would justify the ex officio application of the act of state doctrine by the courts. This doctrine is neither a rule nor a legal obligation required by international law, although it arises from the relevance of the international rule of territorial sovereignty of the state. It was not introduced by a constitutional or legislative provision, but is a common law principle developed mainly by Anglo-Saxon jurisdictions on the basis of considerations of international comity, respect for the principles of sovereign equality and non-intervention in the internal affairs of other states, separation of powers, and the choice of law freedom. To some extent, the legal basis of the doctrine of immunity for acts of state was analogous to the basis of immunity granted to the foreign sovereign state and its agents. The underlying rationale of this doctrine consists in preventing domestic courts from issuing adverse judgments against foreign governments that could embarrass international relations and interfere with the conduct of foreign affairs by the executive branch power. The doctrine of the act of state (and that of the political question) has important differences with the immunity of the foreign state: (1) This immunity is per se a general rule of public international law of a customary nature accepted and applied universally—in addition to being regulated in various international conventions, one of them of universal vocation—unlike the doctrines cited, which are not regulated by national legislations or by international codification efforts. (2) The moment of operation is also different, since the immunity of the foreign state functions ex ante as a procedural exception to the exercise of jurisdiction by the court of the territorial state (or court of the forum), which for that reason is obliged to recognize its lack of competence to try the case before it, while the doctrines of the state act and the political question act later—only if the defendant does not enjoy immunity—when the court is already exercising its competence and knowing the merits of the case. (3) The application of the immunity of the foreign state requires that the foreign state be sued before the courts of the forum, whereas the act of state doctrine does not require that the foreign state itself be a party to the proceedings, but it is sufficient to question the validity of an internal act of the foreign state during the judicial proceedings.

Politicising law or legalising politics? Justiciability and the “political question” on the examples from international justice

2020 ◽  
Vol 10 (4) ◽  
pp. 45-58
Author(s):  
Mikhail Gal'perin
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Separation Of Powers ◽  
The Other ◽  
The Political ◽  
Resolution System ◽  
International Dispute ◽  
International Tribunals ◽  
Political Question ◽  
Dispute Resolution System

Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system. Using some remarkable recent cases from the supreme national and international tribunals’ practice author concludes that international tribunals are increasingly expanding their own competence to cover issues traditionally reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation of provisions of international law adapted by some international tribunals (and other international organs) contradicts their literal meaning as originally intended by the states, is becoming a persistent trend. This entails a natural reaction of national legal systems represented by higher courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction of international courts and arbitration tribunals. The politicization of international arbitration is a question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise, there is a risk that it would destroy the international dispute resolution system and, as a consequence, undermine the mechanisms of international law. At the same time, no peaceful resolution of the conflict of jurisdictions is possible without understanding the problem in the legal plane, without joint determination of which cases are justiciable in the international process, and which questions should be considered “political”. Author made the attempt to give a legal definition of the “political question” in the international procedure and formulate legal tests which could help international judges and arbitrators to define, whether they are ready to and whether they should consider the particular case, related to the “political question”, on the merits (and not to recognise it inadmissible on procedural grounds).

Part III The Current International Law of State Immunity, 17 The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
The State ◽  
General Account ◽  
National Courts ◽  
State Immunity ◽  
Foreign State

This chapter sets out the three exceptions which UNCSI permits in regard to immunity from enforcement — express consent, allocation of property, and relating to property of the State in use or intended for use for other than governmental non-commercial purposes. It then relates to the five categories of State property listed in UNCSI as property in use or intended for use for other than governmental non-commercial purposes. Finally, the chapter reveals that from the general account of immunity from enforcement in the previous and the account listed in this chapter, it is plain that the general legal bar on enforcement against States and their property continues with inconsistencies in its application in national courts and non-payment of dues adjudicated as owing by States, particularly in respect of certain categories of claimants such as employees of a foreign State in a third country.

The Problem of Sovereignty

1923 ◽  
Vol 17 (3) ◽  
pp. 404-414 ◽  
Author(s):  
Baron S. A. Korff
Keyword(s):  
International Law ◽  
The State ◽  
The Other ◽  
General Idea ◽  
The Political ◽  
Modern Theory ◽  
Theoretical Problem ◽  
Equal Importance ◽  
The One ◽  
Political Question

One of the most difficult problems of modern political science is that of sovereignty. The commonly accepted theory contains many elements that seem to be in obvious contradiction to our ideals of democracy; some of them do not fit into the present-day conception of state and government, while others are plain remnants of feudalism and autocracy. One should keep in mind, however, that it is not only a purely theoretical problem closely associated with the general idea of the state, but that it is also an eminently practical one, as it necessarily involves the political question of limitations on the state's powers. Those limitations are of equal importance internally, in the relations between state and citizen, and externally, in the domain of international law.As often happens in cases where political questions are involved, the theory of sovereignty has two extreme wings of proponents. On the one hand there are theorists who defend an all-powerful state and make of the idea of sovereignty the emblem and symbol of the all-powerful state authority. On the other hand, there have appeared recently many writers, who believe that dangers lurk in the views of the first-mentioned school and who are loath to admit that any power, state or personal, may be unlimited; they distrust the theory of sovereignty, because of its association with unlimited power; consequently, they deny the existence of sovereignty altogether, asserting that it has no place whatever in the modern theory of the state.

theoretical and legal analysis of the position of the prosecutor’s office in the system of separation of powers

2021 ◽  
Author(s):  
Vladislav Topilin ◽  
Roman Fedorov
Keyword(s):  
Scientific Knowledge ◽  
Legal Status ◽  
Separation Of Powers ◽  
Executive Branch ◽  
The State ◽  
Legal Analysis ◽  
State Structure ◽  
Independent State ◽  
State Apparatus

The article is devoted to the problems of the legal status of the prosecutor’s office in the system of separation of powers. In the study, the author uses grammatical (philological, linguistic) logical, systematic and other methods of scientific knowledge. The author proposes to separate the prosecutor’s office into a separate (supervisory) branch of government, which will not belong to either the executive branch or the judicial branch, as a result of which the state will receive an independent state structure that will be able to exercise its supervisory functions independently of anyone, which will allow for better and faster suppression of possible violations by any branch of government, as well as improve the work of the state apparatus as a whole.

scholarly journals Kant's metaphysics of law

2004 ◽  
Vol 76 (9) ◽  
pp. 426-436
Author(s):  
Danilo Basta
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
The Political ◽  
Political Union ◽  
History Of Interpretation ◽  
Final Goal ◽  
History Of ◽  
Cosmopolitan Law ◽  
Political Principles

The history of reception and the history of interpretation of Kant's legal deliberation are not the same even after two centuries. This was not only due to the recipients and interpreters of Kant's thoughts but also and above all due to Kant, i.e., the content and the spirit of his philosophy. The law of the state, the international law, and the cosmopolitan law are the ways to approach the eternal peace, which was considered by Kant as the final goal of the entire international law. The existence of the State is based on the idea of the Initial Agreement. According to Kant, in the Initial agreement all the individuals abandoned their external freedom in order to attain the freedom in a legal order as members of the political union. Kant did not always succeed to stay on the level of his own legal and political principles, and hence the light of his philosophy is sometimes covered with the dark shadows.

SOME QUESTIONS OF THE THEORY OF SOVEREIGNTY STATES

2020 ◽  
Vol 20 (2) ◽  
pp. 185-197
Author(s):  
Kadyrbek Umetov ◽  
Keyword(s):  
International Law ◽  
Political System ◽  
Active Participation ◽  
The State ◽  
The Political ◽  
Kyrgyz Republic ◽  
The Real ◽  
Legal Science ◽  
Legal Nature ◽  
Former Soviet Republics

The article reveals the concept of sovereignty as one of the key categories of political and legal science and international law, which has the character of a fundamental norm; various theories that have taken diametrically opposed positions on the issue of determining the legal nature of sovereignty, ranging from its origins to its modern understanding, are considered. The author studied the processes of creating preconditions and historical conditions that ensure the Kyrgyz Republic's active participation in the sovereignization of the former Soviet republics. He defined the specific directions, course and degree of transformation of the Political System of Kyrgyzstan on the basis of declarations of sovereignty and independence, as well as the Constitution of the Kyrgyz Republic. Sovereignty is a property inherent in each subject in itself, and cannot be derived from the sovereignty of another entity, in which it sees the embodiment of the real sovereignty of the State.

Reaching the Internal Tension Model

2021 ◽  
pp. 42-58
Author(s):  
Margit Cohn
Keyword(s):  
Decision Maker ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Normative Theory ◽  
The Political ◽  
Modes Of Operation ◽  
Political Sphere ◽  
The Third ◽  
Executive Action

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.

Part III The Current International Law of State Immunity, 16 State Immunity from Enforcement: General Aspects

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
General Survey ◽  
Commercial Property ◽  
Commercial Use ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
State Practice ◽  
General Aspects ◽  
State Territory

This chapter provides a general survey of State practice and an analysis of the elements involved in immunity from enforcement as provided by UNCSI in its Part IV on State Immunity from Measures of Constraint. State immunity continues to bar to a very large extent the enforcement of judgments given by national courts against foreign States. Again and again thwarted judgment creditors have sought to attach assets of foreign States within the forum State territory, only to be refused orders for execution by national courts. Nonetheless, change is taking place, with a number of national courts, applying the now widely recognized exception to enforcement in respect of commercial property in commercial use, seeking additional ways to render enforcement immunity less absolute in respect of the adjudicated liabilities of the foreign State.

Part III The Current International Law of State Immunity, 14 Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Collective Bargaining ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Labour Law ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
Standard Terms ◽  
Sick Pay

This chapter examines the exception for employment as it pertains to States and international organizations. Whilst the employment — its terms for performance, remuneration, including sick pay, overtime, and other benefits, notice and procedures for dismissal or termination — may be provided in an individual contract or imported from standard terms of employment or collective bargaining agreements, there may also be a considerable overlay of statutory or mandatory provisions that the national labour law imposes or in respect of which increasingly the forum State has assumed regional or international law obligations. There are also certain generally accepted practices relating to employment to be taken into account in considering the scope of the immunity of a foreign State and international organization as regards employment claims brought before the national courts of another State.

Separation of Powers and Alternative Dispute Resolution before the European Court of Human Rights

2019 ◽  
Vol 15 (2) ◽  
pp. 247-271
Author(s):  
Cedric Jenart ◽  
Mathieu Leloup
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Separation Of Powers ◽  
Executive Branch ◽  
The State ◽  
The Other ◽  
International Level ◽  
European Court

Alternative dispute resolution procedures before the European Court of Human Rights – The state agent, a member of the executive branch, tasked with representing the respondent state – Judicial and legislative branches of the respondent state limited or bound by concessions by the state agent – Convention framework effectively increases the power of the executive branch to the detriment of the other branches of government in the respondent state – Tension with national separation of powers – Possible solutions on a national and international level

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