Act of State Doctrine
U.S. courts will not sit in judgment on the validity of official acts of a foreign sovereign government performed within its own territory, even if those acts violate international law.
Elements / Test
Requirements for Act of State doctrine to apply:
- There is an official act of a foreign sovereign
- Performed within its own territory
- The court is being asked to declare the act invalid (or its validity is at issue)
Exceptions and Edge Cases
- Commercial/informal acts (Alfred Dunhill of London v. Republic of Cuba): Government commercial activity is NOT an act of state — only sovereign public acts qualify; plurality opinion, contested
- Treaty: If there is a treaty or other controlling legal principle of international law specifically addressing the situation
- Bernstein exception: Some courts have allowed adjudication if the Executive Branch expressly indicates no foreign policy concerns (Bernstein letters)
- Second Hickenlooper Amendment (22 U.S.C. § 2370(e)(2)): Congressional override — act of state doctrine does not apply to expropriations of property in violation of international law (for compensation claims), where the property or its proceeds are present in the U.S.
- Kirkpatrick exception (W.S. Kirkpatrick & Co. v. Environmental Tectonics): Doctrine does not apply when the act’s validity is not at issue — court may find as a fact that a bribe was paid without ruling on whether the foreign act was lawful
- Distinction from FSIA: FSIA provides immunity from jurisdiction; act of state operates as a merits defense even when court has jurisdiction
Policy Rationale
Separation of powers: Executive Branch needs flexibility to manage foreign relations; courts lack institutional competence to evaluate foreign sovereign acts; risk of diplomatic embarrassment. Critics: allows foreign governments to violate international law with impunity in U.S. courts.
Key Cases
| Case | Rule |
|---|---|
| Banco Nacional de Cuba v. Sabbatino (1964) | Act of state doctrine applies even to violations of international law; courts cannot adjudicate validity of foreign expropriation |
| Alfred Dunhill of London, Inc. v. Republic of Cuba (1976) | Commercial act exception — government’s commercial acts are not acts of state (plurality) |
| W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. (1990) | Doctrine does not apply when court need not declare foreign act invalid — mere factual inquiry permitted |