The two joined appeals concern alleged UK involvement in breaches of human rights by foreign governments.
Mr Belhaj was an opposition commander during the 2011 Libyan armed conflict and is now leader of the Libyan Al-Watan Party. In 2004, Mr Belhaj and his pregnant wife Mrs Boudchar attempted to fly from Beijing to London but were instead deported to Kuala Lumpar. From there, they were taken to a CIA facility in Bangkok, before being rendered to Libya by US agents. The respondents allege that the UK assisted in their unlawful rendition to Libya and that the UK was complicit in torture, degrading and inhuman treatment inflicted upon them by the US and Libyan authorities.
Mr Rahmutallah was captured by British forces in Iraq on 28 February 2004 and, subject to a Memorandum of Understanding (MoU), transported to a US detention facility on suspicion of being a member of the proscribed group Lashkar-e-Taiba. On 29 March 2004 he was transferred to another US detention facility in Afghanistan where he remained, without charge or trial, until his release on 15 May 2014.
The appellants argued that the issues were inadmissible or non-justiciable due to the doctrines of state immunity and/or foreign act of state.1 The Court of Appeal dismissed this argument and the appellants appealed to the Supreme Court. Lord Mance summarised the two doctrines:
“State immunity qualifies the jurisdiction of domestic courts. Foreign act of state in one sense requires a domestic court to accept without challenge the validity of certain foreign state acts, but in another sense it is a broader principle of non-justiciability, whereby the domestic court must simply declare itself incompetent to adjudicate.” 
The Supreme Court unanimously dismissed the Government’s appeals.
In his lead judgment, Lord Mance explained that there are three types of foreign act of state. Firstly, under Private International Law “a foreign state’s legislation will be recognised and normally accepted as valid, in so far as it affects property” . This is subject to territorial principles and can, in exceptional circumstances, be refused on public policy grounds. Secondly, an “English court will not question a foreign governmental act in respect of property situated within the jurisdiction of the foreign government in question” . Thirdly, where there is no constitutional competence under the separation of powers, and cases which do not involve private legal rights or matters of public policy, the domestic courts should treat these as “non-justiciable or should abstain from addressing” [40, 43]. This third type of foreign act of state should be considered on a case-by-case basis .
The appellants’ argument that foreign act of state should cover all sovereign acts by a foreign state anywhere abroad was rejected [11(iv)]. Expanding the doctrine in this way would act as a “bar to domestic adjudication against defendants otherwise amenable to the English jurisdiction” .
In addition, it should be recognised that ‘act of state’ is a domestic law doctrine, therefore English law should consider its limits: especially when fundamental rights – such as liberty, arbitrary detention and freedom from torture – are engaged [98-100]. Taking into account the seriousness of the allegations made by the respondents, the courts should not “abstain or refrain from adjudicating upon the claims made” .
Lord Neuberger further elaborated upon the foreign act of state doctrine in his concurring judgment and for his part identified four possible rules. Firstly, the English courts will recognise and not question “the effect of a foreign state’s legislation” . Secondly, the English courts will recognise and not question “the effect of an act of a foreign state’s executive” . Thirdly, the English courts “will not interpret or question dealings between sovereign states” . Fourthly, the English courts will not investigate acts of a foreign state where it would cause embarrassment to the UK government . However, the possible principles vary in their authority and there are limits to the doctrine [125-132, 153-165]. In Lord Neuberger’s view, the defendants could not rely upon any of the possible rules of foreign act of state, and there would be a public policy exception in any event [166-172].
Lord Sumption also offered an alternative formulation of the foreign act of state doctrine – arguing that it consists of two principles. He labels the first principle a ‘municipal law act of state’. In these situations, “the English courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts under its own law” . The second principle is called an ‘international law act of state’ where “the English courts will not adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states” . Using this formulation, Lord Sumption agreed that the foreign act of state doctrine could not be applied in this case .
With regard to state immunity, the Supreme Court agreed with the Court of Appeal that the appeal should be dismissed because the conduct of foreign officials would not be “affected in any legal sense by proceedings to which they are not a party” .
The cases may proceed to trial.
The joined appeals set out that state immunity cannot be invoked when foreign states are not parties to the cases, and a foreign act of state cannot be relied upon to avoid claims that affect fundamental rights. This decision will allow the courts to examine the extent of the UK Government’s involvement in rendition and human rights abuses.
The divergence in the Law Lords’ reasoning show a certain scepticism in relation to the operation of the foreign act of state doctrine. The various constructions of the doctrine reveal a lack of consensus regarding its scope and application. This may make it difficult to apply the reasoning in subsequent cases.
JUSTICE, Amnesty International, The International Committee of Jurists (ICJ) and REDRESS were given permission to intervene at the Supreme Court in Belhaj and were represented pro-bono by Martin Chamberlain QC, Oliver Jones and Zahra Al-Rikabi of Brick Court Chambers in their intervention. Following the Supreme Court judgment, JUSTICE is pleased that the UK courts will be able to consider serious and unlawful acts that have alleged to have been committed by our Government.
- It should be noted that a ‘foreign act of state’ is distinct from a ‘Crown act of state’. The latter doctrine was discussed in the joined appeal Rahmatuallah (No. 2) v Ministry of Defence & Another and Mohammed & Others v Ministry of Defence & Another  UKSC 1.