Case: Buttes Gas &amp; Oil Co v Hammer [1982] AC 888
Outcome: considered
two principles of Act of State and justiciability are to some extent distinct but they are interrelated in the present case. The Act of State doctrine was examined by the House of Lords in Buttes Gas &amp; Oil Co v Hammer [1982] AC 888. In that case, there were two issues which raised questions relating to Acts of State. The first concerned the boundary of the continental shelf between former sovereign states and the second was whether there had been a fraudulent conspiracy between one of the sovereign states and Buttes to defraud in order to injure another. Having identified these two issues, Lord Wilberforce stated the principle at 938: 'It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations... there are ... no judicial or manageable standards by which to judge these issues... the court would be in a judicial no mans land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say at least part of these were "unlawful" under international law.' The interrelation of the two principles can be seen from this extract. The principles in Buttes were applied by the High Court of Australia in Attorney-General (UK) v Heinemann Publishers Australia Pty Limited [1988] HCA 25 ; (1988) 165 CLR 30. That case involved an action in Australia by the Attorney-General of the United Kingdom to prevent disclosure of information in Australia by a publisher in breach of a claimed fiduciary duty of secrecy owed to the United Kingdom Government. The High Court held that the Attorney-General's claim was not maintainable in an Australian court on the ground that it sought to vindicate the governmental interests of a foreign state, and that it was a rule of international law that such a claim was not enforceable. The Court said at 44: 'But there are some claims for which the very subject-matter of the claims and the issues which they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign.' The respondents submit that this principle applies in this case in respect of a request to the United States, given the complex considerations that attach to the making of a request for the return of Mr Hicks. The decision in Buttes was considered in Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19 ; [2002] 2 AC 883, which involved a seizure by the Iraqi government of aircraft owned by Kuwait Airways Corporation. A question was raised as to whether a court in the United Kingdom in which the proceeding had been commenced could treat the matter as justiciable. After referring to the above statement of Lord Wilberforce, Lord Nicholls said at 1080-1081: 'In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law... Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one State against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome is not in doubt. That is the present case.' (Emphasis added) As in the Buttes case, a question of territorial boundaries between sovereign states was the issue in Petrotimer and the circumstances in Petrotimer are quite different from those in the present case. For instance, the case did not involve a question of deprivation of personal liberty or of detention. It should be noted that Black CJ and Hill J at 369 accepted the proposition that the principles stated in Buttes as to Acts of State and judicial restraint were subject to the qualification expressed by the House of Lords in Kuwait Airways . Their Honours accepted at 372 that Kuwait Airways required a significant reading down of Buttes . Their Honours referred in particular to the speech of Lord Nicholls, and his Lordship's endorsement of Lord Wilberforce's statement of the principle in Buttes (extracted and discussed above). It is arguable that the necessity for 'judicial or manageable standards' by which to decide the issues in a given case are satisfied when those issues involve consideration of the Constitutional reach of, and limitations on, executive power. In Kuwait Airways , reference was made to Lord Wilberforce's comments in Buttes , extracted and discussed above, regarding the inability of courts in certain circumstances to perform a judicial function because there may be no standards or parameters or norms against which executive conduct could be measured. In such a case, the question will be non-justiciable as a matter of general principle. Counsel for Mr Hicks, however, argues that in the present circumstances, because these issues are set out in a statute which could be relevant in making and considering findings with respect to unfair trials, the standards the Court is asked to apply are justiciable.