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The Act of State Doctrine and the Rule of Law

Published online by Cambridge University Press:  16 May 2017

Abstract

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Type
Editorial Comment
Copyright
Copyright © American Society of International Law 1959

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References

1 Interhandel Case (Switzerland v. United States of America), Oral Proceedings (Nov. 5 to 17, 1958), pp. 140-141 (I.C.J. Distr. 58/185).

2 “ A Reconsideration of the Act of State Doctrine in the United States Courts,'’ Report of Committee on International Law, presented to the Annual Meeting, Association of the Bar of the City of New York.

3 26 Dept. of State Bulletin 984 (1952).

4 Speech of Vice President Nixon to Academy of Political Science, New York Times, April 14, 1959, p. 20; see also Briggs, “The United States and the International Court of Justice: A Re-examination,” 53 A.J.I.L. 301 (1959).

5 Jessup, “Power, Facts and Law,” Presidential Address, 49 A.S.I.L. Proceedings 1, 6 (1955).

6 See Report of Committee on International Law, p. 8 (note 2 above): “ … A refusal of courts to consider foreign acts of State in the light of the law of nations is not, it should be remembered, merely a neutral doctrine of abstention. On the contrary the effect of such a doctrine is to lend the full protection of the United States courts, police and governmental agencies to commercial property transactions which are contrary to the minimum standard of civilized conduct on the general acceptance of which security in such transactions ultimately rests … “ See also, Report of the Committee on Nationalization of Property, American Branch, International Law Association, Proceedings and Committee Reports 1957-8, p. 62: “ … It is, in our submission, unsound to maintain that the State is responsible under international law for the violation of alien property and contractual interests but that, under its rules of private international law which are alleged to be municipal rules alone, its courts may subvert that international law by which the State as a whole is bound. Whatever doctrinal validity the dichotomy between private international law and public international law may have, it is insufficient to overcome the needs of the international community. Public international law is not only to be described but applied. A principal forum of its application, especially in the field of alien property and contractual interests, is and should increasingly be the municipal courts of States.“

7 29 Dept. of State Bulletin 358, 360 (1953).