10 The British Act of State

Subject(s):

Act of state — Sovereignty — Act of state doctrine — Non-justiciability — Damages — Diplomatic protection

The difficulty of identifying and defining a foreign act of State would probably be less aggravating if an established meaning could be attributed to the British act of State. This, unfortunately, is not the case. The consequence is that even the meaning of the British act of State is obscure, the more so, as very justifiably Lord Wilberforce said that the doctrine of the act of State ‘cannot be stated in terms of a principle, but develops from case to case; it has perhaps the disadvantage that it includes within itself two different conceptions or rules’. It is submitted that the phrase indeed carries two, perhaps three, entirely different meanings and that as a result of a confusing argument presented on behalf of the Crown in Attorney-General v. Nissan, the opinions delivered by their lordships make difficult reading and the present status and scope of the two branches of the doctrine cannot easily be unravelled.