Bernas Public International Law – IMMUNITY FROM JURISDICTION Part 5

CHAPTER 10: IMMUNITY FROM JURISDICTION Part 5

D. Immunity of International Organization

– The basis of their privileges and immunities is not sovereignty but necessity for the effective exercise of their functions.

E. The Act of State Doctrine

Underhill v. Hernandez

Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the anti-administration party, assumed leadership of the government.

George Underhill, a US citizen, had constructed a waterworks system for Bolivar under a contract with the government and operated a machinery repair business. Gen. Hernandez refused to grant Underhill a passport to leave the city to coerce him to operate his waterworks and repair works for the benefit of the community and the revolutionary forces.

Underhill files a suit in the US to recover damages for the detention, his alleged confinement to his own house, and for certain alleged assaults and affronts by the soldiers of Hernadez’s army.

In denying Underhill’s plea, the US court applied the ―act of state doctrine:

a.) Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one county will not sit in judgment on the acts of the government of another, done within its own territory.

b.) Redress of grievances due to such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

Banco Nacional de Cuba v. Sabbatino

The act of state doctrine is not a rule of international law but of judicial restraint in domestic law, embodied by the principle of separation of powers, whereby courts refrain from making decisions in deference to the executive who is the principal architect of foreign relations.

Alfred Dunhill of London, Inc. v. Cuba

The issue is whether or not the failure of Cuba to return to Dunhill funds mistakenly paid by the latter for cigars sold to him by certain expropriated Cuban cigar business was an ―act of state.

The Court ruled in favor of Dunhill:

a.) The concept of an act of state should not be extended to include the repudiations of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities.

Kirkpatrick Co. v. Environmental Tectonics Corp.

A contract was entered into between the Nigerian Government and Kirkpatrick Co. for the construction and equipment of an aeromedical center at Kaduna Air Force base in Nigeria.

Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had bribed Nigerian officials to win the contract. It brought the matter to the Nigerian Air Force and the US embassy in Lagos.

US attorney for the District of NJ charged Kirkpatrick with violations of the Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.

Environmental Tectonics brought a civil action against Kirkpatrick to seek damages under the Racketeer Influenced and Corrupt Organizations Act.

Defendant moved to dismiss the complaint on the ground of ―act of state doctrine.

SC ruled that the act of state doctrine is inapplicable where the validity of a foreign government act is not in question, as in this case.