The Russian invasion of Ukraine has been roundly condemned by the vast majority of the world’s governments. Few have refused to comment, and even fewer have refused to criticise. But how will Russia, its emanations of state, and its officials, be held to account?
Justiciability is a hazy concept used to delineate when an issue falls outside the limits of what a court has the judicial authority to determine. Under it, conventionally, English courts do not pass judgment on the acts of foreign states. Those acts are deemed to be “non-justiciable” under the “foreign act of state” doctrine.
However, the 2017 Supreme Court decision in Belhaj and another v Straw and others cast doubt on the breadth of this doctrine. Belhaj concerned allegations the UK government – and Jack Straw personally – had assisted foreign governments in carrying out an extraordinary rendition of the claimants from Malaysia to Libya. The government invoked the foreign act of state doctrine in its defence, but in a landmark decision, the Supreme Court declined to allow it.
Instead, the Court lifted the lid on state immunity and considered when, on public policy grounds, the English courts really should take jurisdiction over serious international wrongs. One of the reasons given by the Lord Sumption in Belhaj for refusing to kneel to state immunity was “jus cogens”. That is to say, on public policy grounds, some issues are so fundamental as to engage a court’s jurisdiction where otherwise it might not be found. Arbitrary disappearances were, in Lord Sumption’s view, one such issue.
The foreign act of state doctrine arose again in Law Debenture Trust Corporation plc v Ukraine, a case about several billion dollars in bonds issued by Ukraine to Russia. Ukraine did not pay amounts due under those bonds in 2015, but has claimed in its defence that the bonds were issued under duress from Russia (principally in the form of threats to Ukraine’s territorial integrity). The Supreme Court has been asked to decide whether those allegations are so fundamental as to provide the English courts with a “domestic foothold” under which to try them. Judgment is awaited.
There does seem to be a trend developing in which the courts of this jurisdiction will feel able to determine a dispute if it involves allegations that a foreign state has engaged in wrongdoing of a fundamental kind. Reflective of the West’s stance towards Russia in response to the invasion, perhaps the emphasis is moving from safeguarding international harmony to policing international behaviour. It is no longer safe to assume that a case involving foreign acts of state will escape the English courts’ grasp.
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© Farrer & Co LLP, July 2022