1 James N. Hyde, , “The Act of State Doctrine and the Rule of Law,” 53 A.J.I.L. 635 (1959)Google Scholar; the Resolution is also printed in “The Record,” published by the Bar Association of the City of New York, Vol. 14, No. 6, p. 228 (June, 1959).

2 Salimoff & Company v. Standard Oil Company of New York, 262 N. Y. 220 (1933); Anglo-Iranian Oil Co. Ltd. v. Jaffrate et al. (The Bose Mary), Supreme Court of Aden, 1953 Int. Law Rep. 316; 47 A.J.I.L. 325 (1953). In the Bose Mary case the real issue before the court was the validity of the governmental decrees. This was a secondary issue in the Salimoff case, the main issue there being whether or not the acts of the unrecognized government of Russia should be given the same effect as those of a recognized government. There seemed no doubt in the court that it could not pass upon the validity of an act of a duly recognized government. The case differs in one respect from the Bose Mary case decided by the Court of Aden, in that in the Salimoff case the owner before nationalization was a national of the country which seized the property, and in the Bose Mary case the owner was a foreigner to the country which nationalized the oil fields. However, in the Salimoff case, it should be noted, the Court of Appeals said: “The courts of one independent government will not sit in judgment upon the validity of the acts of another done within its own territory, even when such government seizes and sells the property of an American citizen within its boundaries.” (Loc. cit. 224.) Although this is dicta, since no American in that instance was an owner, it is at least indicative of the attitude of the court. Cf. Ricaud et al. v. American Metals Co. Ltd., 246 TJ. S. 304 at 310.

3 The Bar Association recommended that there should be three bases upon which an American court could be free to declare invalid an action of a foreign state. Page 5 of the report reads in part: “Where the foreign State is acting with respect to persons or property within its territorial jurisdiction, the court of the forum may be requested to deny effect to relevant acts of the foreign State on one or more of the following grounds: (a) that the act violates the constitutional law of the foreign State, (b) that the act is repugnant to the public policy of the forum or (c) that the act is in violation of international law.''

4 For a comprehensive discussion of proof of foreign law before American courts, see Sommerich and Busch, Foreign Law: A Guide to Pleading and Proof (New York: Oceana Publications, 1959), reviewed below, p. 212.

5 See note 3 above.

6 United States v. Pink, 315 U. S. 203.

7 Comments by English authorities on the Rose Mary decision have not been unanimous, some being adversely critical as, for example, the comment by Michael Mann, 5 International and Comparative Law Quarterly 295-299 (1956). In referring to another case following the decision in the Rose Mary, he says:

8 Anglo-Iranian Oil Company Ltd. v. S.U.P.O.B. (Unione Petrolifera per l'Oriente S.p.A.), 1955 Int. Law Rep. 21; 47 A.J.I.L. 509 (1953): “The oil which forms the subject of the present dispute was taken by the Persian Government in Persia by virtue of the Nationalization Law, and in Persia it was disposed of in favour of S.U.P.O.B. by a contract of sale: All this was in conformity with the judicial system of the Persian Government, on whose territory these acts (expropriation and sale and purchase) took place, with the legal and material consequences flowing therefrom. The recognition in Italy of the validity of the effects which these acts had already had in Persia cannot be termed co-operation to make them become effective; it constitutes no more than an acknowledgment that the effects have indeed taken place, i.e., accepting the effects produced, which in themselves—and considered separately from their cause—are in no way contrary to public order. The Nationalization Law should not, therefore, be examined from the point of view of public order.“

9 Anglo-Iranian Oil Company v. Idemitsu Kosan Kabushiki Kaisha, 1953 Int. Law Rep. 305.

10 The report of the committee of the Bar Association presenting the resolution admits the possibility of diverse interpretations.

11 See sec. 9 in text below.

12 Bernstein v. NW. Nederlandsche-Amerikaansehe Stoomvaart-Maatsohappij, et al., 210 F.2d 375 (1954); 48 A.J.I.L. 499 (1954); 20 Dept. of State Bulletin 592 (1949).

13 Be, Edward D., “Judicial Developments in Sovereign Immunity and Foreign Confiscations,” New York Law Forum, June, 1955, particularly at p. 197 et seq. Google Scholar

14 See. 39 of the Trading with the Enemy Act reads in part as follows: ‘ ‘ No property or interest therein of Germany, Japan, or any national of either such country vested in or transferred to any officer or agency of the Government at any time after December 17, 1941, pursuant to the provisions of this Act, shall be returned to former owners thereof or their successors in interest, and the United States shall not pay compensation for any such property or interest therein… . “

15 The quotations incorporated in the text are from the opinion of John Marshall, C. J., in Schooner Exchange v. M'Faddon, 7 Cranch 116. For consideration of an act of state by the United States under international law cf. Philip C. Jessup, “Enemy Property,” 49 A.J.I.L. 57 (1955), and Henry P. de Vries, “The International Responsibility of the United States for Vested German Assets,” 51 A.J.I.L. 18 (1957). Mr. Jessup expresses doubt that the action of the United States in seizing and using German privately owned property is in accordance with international law, and would welcome a final authoritative pronouncement by the International Court of Justice. Mr. de Vries is thoroughly convinced that the actions by the United States do not in any way offend the principles of international law. The articles are offered here solely as illustrations of the possibilities discussed in the text. The correctness of either position is not assumed. Cf. Tag v. Rogers, Atty. Gen., 267 F.2d 664 (1959), digested below, p. 188. Petition for certiorari pending.

16 Above, p. 143. In the Rose Mary case Judge Campbell, in disposing of the contention that fear of military action had forced the ship to put in at the Port of Aden, said: “ No reasonable man could think it likely that Her Majesty's Government in the year 1952 would try to resolve a commercial dispute by what would be little short of an act of war.“

17 This procedure was a continuing one. New York Herald Tribune, Sept. 15, 1959; New York Times, Oct. 5, 1959.

18 Underhill v. Hernandez, 65 Fed. 577 (1895) ; for a current comment on this case and others herein discussed, see Zander, “The Act of State Doctrine,” 53 A.J.I.L. 826 (1959).

19 Oetjen v. Central Leather Co., 246 U. S. 297 at 304 (1917); 12 A.J.I.L. 421 at 425 (1918).

20 In defending the doctrine of mare clausum as against mare liberum, particularly in excluding other countries from fishing off Newfoundland, see Louise Fargo Brown, Freedom of the Seas 21-22 (New York: E. P. Dutton & Co., 1919).

21 A report by a Committee on Nationalization of the Property of Aliens on the same problem as here discussed is contained in “The Record” for June, 1958. One of the three proposals made there (p. 367 at 378-381) was similar to the present one. The other two were: 1. A new international court of arbitration should be established to which alien holders of property and contractual rights would have equal access with states; 2. A broader use should be made of the machinery of the International Court of Justice.