Torture and the Act of State Doctrine

Prof. Satvinder S. Juss
Professor of Law – Dickson Poon School of Law Kings College London – UK


This paper discussed the origin of the doctrine of judicial self-restraint where a defence of ‘Act of State’ is raised by a government on grounds of state sovereignty. The older cases raised international boundary and inter-state law issues. These could arise from a dispute over the territorial waters. Lord Wilberforce enunciated the principle as one where, “the courts will not adjudicate upon acts done abroad by virtue of sovereign authority”. Lord Wilberforce had explained how, ‘the so-called Act of State doctrine … is traditionally limited to governmental action within the territory of the respective state.’ He had said that judicial self-restraint ‘rather follows from the general notion that national courts should not assume the functions of arbiters of territorial conflicts between third powers even in the context of a dispute between private parties.’
But discomfiture in judicial circles with the foreign act of state doctrine nonetheless remained. Paul Daly has described as the “so-called ‘political question’ doctrines” but where “[n]o definition has common currency, which makes discussion difficult and increases the risk of attacking a straw man.”Writing in 2002, Lawrence Collins has said that: “[t]he idea that some matters are simply not justiciable is not one which comes easily to lawyers and judges. But in the field of foreign affairs it is an idea which has gained much currency …..” It arises because of,“what may be described as sensitivity to foreign policy interests, and certainly not deference to the views or objectives of the executive”.
This Paper discussed the question in relation to the case of Belhaj which came before the UK Supreme Court in 2018, because it raised the timely issue whether, outside of the area of inter-state boundary disputes between nations, the ‘act of state’ doctrine could be invoked for a violation of a fundamental human right – for example an act of state torture. The UK Supreme Court has now given an emphatic and resounding answer to that question. This Paper discusses the implications of this decision, particularly in the context of national security concerns arising from terrorist activities and asks whether the sovereign power of the State to protect its citizens from terrorism has been weakened by this decision.

Keywords: Torture, Justiciability, Act of State, Belhaj, Human Rights.

Read Full PDF Text (English)