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The Act of State Doctrine

Published online by Cambridge University Press:  28 March 2017

Michael Zander
Michael Zander*
Affiliation:
Lately Whewell Scholar of International Law
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Extract

It is proposed in the present paper to examine the act of state doctrine enunciated in the dictum of Chief Justice Fuller in Underhill v. Hernandez that

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

Type
Research Article
Information
American Journal of International Law , Volume 53 , Issue 4 , October 1959 , pp. 826 - 852
Copyright
Copyright © American Society of International Law 1959

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References

1 168 II. S. 250 (1897).

2 Ibid, at 252.

3 See the useful monograph of B. D. Be, Foreign Confiscations, collecting all the relevant Anglo-American decisions.

4 Halsbury (Hailsham), Vol. XXVI, p. 246.

5 The writer is here accepting the definition proposed by Dr. F. A. Mann in his most helpful article “The Sacrosanctity of Foreign Acts of State,” 59 Law Quarterly Rev.42, 155 (1943).

6 Thus no consideration will be given to the extraterritorial effect to be allowed to such acts of state.

7 Lipstein, K, “Recognition of Foreign Governments and the Application of Foreign Laws,” 35 Grotius Society Transactions 157, 161 (1949).Google Scholar

8 [1921] 3 K.B. 532.

9 Blads Case (1673), 3 Swan 603, 604 (1674).

10 Admittedly, the additional complication of a treaty between England and Denmark, the interpretation of which was involved in the case, makes the decision less clear than would otherwise be the case.

11 6 Beav. 1 (1844), aft'd 2 H.L. Cas. 1 (1848).

12 2 H.L. Cas. 1, 17 (1848).

13 Ibid. At 21.

14 6 Beav. 1. See, e.g., at 50-51: “ I t appearing to me that all the reasons upon which the immunities of ambassadors are founded do not apply to the case of sovereigns but that there are reasons for the immunities of sovereign princes, at least as strong, if not much stronger, than any which have been advanced for the immunities of ambassadors … I think that … a sovereign prince resident in the dominions of another, is exempt from the jurisdiction of the Courts there.“

15 Such, at least, was the understanding of Judge Wallace in Underhill v. Hernandez, 65 Fed. 577 (2nd Cir. 1895), who, relying heavily on the Duke of Brunswick case, stated: “The decision [in the Duke of Brunswick case] was put, not upon the personal immunity of the sovereign from suit, but upon the principle that no court in England could sit in judgment upon the act of a sovereign, effected by virtue of his sovereign authority abroad.” Ibid, at 580.

16 2 Dall. 247 (U.S., 1796).

17 Bradford, Att'y Gen., June 16, 1794, 1 Ops. Att'y Gen. 45; 2 Moore, International Law Digest 23 (1906).

18 People v. McLeod, 25 Wend. 483 (N.Y. 1841). For some of the governmental-correspondence, see 2 Moore, Int. Law Digest 24 (1906).

19 7 Hun. 596, 599 (2d Dept., 1876).

20 Ibid, at 600.

21 68 U.S. 250 (1897).

22 Cf. Carr v. Fracis Times&Co., [1902] A.C. 176, where an action in tort was brought against the commander of a British warship for the seizure of arms in the territorial waters of Muscat. The seizure was authorized by the Sultan of Muscat and, therefore, according to the English rule of the conflict of laws that the act must be unlawful both by English law and by the law of the country where it was committed, no action lay. See also Dobree v. Napier (1836), 2 Bing. N.C. 781.

23 Page 826 above.

24 loc. cit. at 252.

25 246 U.S. 297 (1918).

26 246 U.S. 304 (1918).

27 Ibid, at 303.

28 As to which see below, p. 839 et seq.

29 213 U.S. 347 (1909).

30 It is a common error to assume that the act of state doctrine deprives the court of jurisdiction over the issue. Its alleged effect is rather to deprive the court of the possibility of inquiring into the validity of the act; the merits of the case must be decided as if the act were valid.

31 Salimoff v. Standard Oil Co., 237 App. Div. 686, 262 N.T.S. 693 (1st Dept.), aff'd,, 262 N.T. 220, 186 N.E. 679 (1933); Wulfsohn v. Russian Socialist Federated Soviet Republic, 202 App. Div. 421, 193 N.T.S. 472 (2nd Dept. 1922), rev'd, 234 N.T. 372, 138 N.B. 24 (1923); Dougherty v. Equitable Life Assurance Society, 266 N.T. 71, 193 N.E- 897 (1934).

32 Banco de Espana v. Federal Reserve Bank, 114 F. 2d 438 (2d Cir. 1940).

33 Bernstein v. Van Heyghen Frères S.A., 163 F. 2d 246 (2d Cir. 1947), cert, denied, 332 U.S. 772 (1947); Werfel v. Zivnostenka Banka, 260 App. Div. 747, 23 N.T.S. 2d 1001 (1st Dept. 1940), rev'd, 287 N.T. 91, 38 N.E. 2d 382 (1941); Kleve v. Basler Lebens Versicherungs Gesellschaft, 182 Misc. 776, 45 N.T.S. 2d 882 (Sup. Ct. N.T. 1943); Holzer v. Deutsche Reichsbahn Gesellschaft, 277 N.T. 474, 14 N.E. 2d 798 (1938), Annual Digest 1938-1940, Case No. 71.

34 Bernstein v. Van Heyghen Freres S.A., cited above; digested in 42 A.J.I.L. 217 (1948).

35 loc. cit. at 249.

36 Cf. United States ex rel. Von Heymann v. Watkins, 159 F. 2d 650 (2d Cir. 1947); Banco de Espana v. Federal Reserve Bank, cited note 32 above; Hewitt v. Speyer, 250 Fed. 367 (2d Cir. 1918), and Supreme Court decisions such as Underhill v. Hernandez, cited above, note 1.

37 Military Government Law No. 1, Arts. I, II ; Beg. under Law No. 1, Part I I ; Law No. 52 as amended, Art. 1, par. 2 (Mil. Gov. Gaz., U.S. Zone, June 1, 1946).

38 See Mann, , “Judiciary and Executive in Foreign Affairs,” 29 Grotius Society- Transactions 143 (1943)Google Scholar; Jaffe, Judicial Aspects of Foreign Relations.

39 In 1949 the Department of State issued a letter, in 20 Dept. of State Bulletin 592 (1949), stating that it was the policy of the Executive to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials. This would seem to be a clear statement that the courts need not apply the act of state doctrine in regard to Nazi acts. See comment on the Bernstein case by Lester H. Woolsey in 44 A.J.I.L. 129 (1950).

40 See Kleve v. Basler Lebens Versieherungs Gesellschaf t, 182 Misc. 776, 45 N.Y.S. 24 882 (Sup. Ct. 1943): “As for the very obnoxious and offensive character of the German decrees, the court is obliged to hold that the governing law is no less controlling because it is bad law.” Accord, Holzer v. Deutsche Beichsbahn Gesellschaft, 277 N.Y. 474, 14 N.E. 2d 798 (1938). Cf. note 113 below for lower court's opposite view.

41 Schendel v. Chicago M.&St. P. By., 168 Minn. 152, 210 N.W. 70 (1926); Harrison v. Triplex Gold Mines, 33 F. 2d 667 (1st Cir. 1929).

42 Cf. Hilton i). Guyot, 159 U.S. 113, 202 (1895).

43 Dunston v. Higgins, 138 N.Y. 70, 74; 33 N.E. 729, 730 (1893).

44 Hilton v. Guyot, note 42 above; “Warren v. Warren, 73 Fla. 764, 75 So. 35 (1917); and see Morgenstern, 4 Int. Law Q. 326, 340-343 (1951), for English, German, American and Italian decisions.

45 Some comfort may be derived from Judge Learned Hand's suggestion that the United States courts might accept jurisdiction over cases involving foreign acts of state if the Executive has indicated that the courts should so act. This would leave the parties with the possibility of seeking a statement of the State Department's policy and so an avenue of escape from the present impasse. Cf. Ex parte Muir, 254 U.S. 522 (1921), for a closely analogous procedure in sovereign immunity cases.

46 Contra: American Banana Corporation v. United Fruit Co., 213 U.S. 347 (1908); Stark v. Howe Sound Co., 148 Misc. 686, 266 N.Y.S. 368 (Sup. Ct. 1933), aff'd, 241 App. Div. 637, 269 N.Y.S. 936 (3rd Dept. 1934), amended, 242 App. Div. 668, 271 N.Y.S. 1097 (3rd Dept. 1934); McCarthy v. Reichsbank, 259 App. Div. 1016, 20 N.Y.S. 2d 450, aff'd, mem., 284 N.Y. 739, 31 N.E. 2d 508 (1940).

47 See Ee, Foreign Confiscations 159-163.

48 [1921] 3 K.B. 532.

49 1 Oppenheim, International Law 267 (8th ed., Lauterpaeht, 1955). But notice the additional qualification introduced for the first time by the learned editor in this edition that the act must not be contrary to international law.

50 [1921] 3 K.B. 545.

51 Ibid, at 548.

52 Ibid. at 558.

53 A clearly fallacious argument which takes as its premise the conclusion stated.

54 See especially Lipstein, 35 Grotius Society Transactions 157 (1949); Fachiri, 12 Brit. Tr. Bk. Int. Law 95 (1931).

55 [1929] 1 K.B. 718.

56 See discussion below, pp. 839, 846.

57 1 Oppenheim, International Law 329-330 (8th ed., Lauterpacht, 1955). See Wharton, Conflict of Laws 54 (3rd ed., 1905); Cheshire, Private International Law 133 (5th ed.); Queen of Holland v. Drukker, [1928] Ch. 877, in which the Chancery Division, in dismissing an action to “enforce a claim in England by a foreign State against the subjects of the foreign State in respect to revenue due from the foreign subject,” observed that “there is a well recognized rule which has been enforced for at least 200 years or there abouts, under which these courts will not collect the taxes of foreign states for the benefit of the sovereigns of those foreign states.” Cf. Huntington v. Attrill, [1893] A. C. 150; Huntington v. Attrill, 146 U.S. 657, 688 (1892); Estonian State Cargo Line v. S.S. Elise and Laane and Baltser, [1949] Can. S.C. Bep. 530; King of Hellenes v. Brostrom (1923), Annual Digest 1923-1924, Case No. 81; Bergen v. Olsen (1924), ibid., Case No. 147 (Danish court refused to enforce a Norwegian revenue law) ; Norwegian State v. Bruhn (1924), ibid., Case No. 148 (Swedish courts refused to take jurisdiction to collect Norwegian taxes); Caisse Generale etc. v. S.A. des Ateliers de Godarville (1930), Annual Digest 1929-1930, Case No. 63 (Belgian court refused to enforce German social insurance legislation involving the collection of taxes); Court Fees (Danzig) Case (1932), Annual Digest 1931-1932, Case No. 73 ( “ I n accordance with the principles of international law, a foreign State may not employ the organs of another state for the execution of its foreign sovereign rights, for instance, to enforce payments of its public charges.“); Folliot v. Ogden (1787), H. Bl. Rep. C.P. I, 124, 136.

58 Dicey, Conflict of Laws 154 (8th ed., 1949).

59 [1956] 1 Ch. 323; 50 A.J.I.L. 683 (1956).

60 Citing Rex v. International Trustee Bondholders A. G., [1937] A.C. 500; Kahler v. Midland Bank, [1950] A.C. 24; Perry v. Equitable Life Assurance Co. (1929), 45 T.L.E. 468.

61 [1947] 1 Ch. 629.

62 See also Oppenheimer v. Rosenthal&Co., [1937] 1 All E.B. 23, for a case similar on its facts to Holzer v. Deutsche Keichsbahn Gesellschaft, note 40 above. The court used a dubious interpretation of procedural law to avoid having to say that German law governed the contract. See generally, Bawson, “Racial Legislation,” 10 M.L.E. 345 (1947).

63 Dicey, op. cit. note 58 above, at 155.

64 1 Oppenheim, International Law 267-268 (8th ed., Lauterpacht, 1955).

65 Lauterpacht, 28 Brit. Tr. Bk. Int. Law 229-231 (1951).

66 See 1 Oppenheim, International Law 267-270 (8th ed., Lauterpacht, 1955); Fachiri, 12 Brit. Yr. Bk. Int. Law 95-106 (1931); Wortley, 33 Grotius Society Transactions 30 (1947); Morgenstern, 4 Int. Law Q. 326-344 (1951); Mann, 59 Law Quarterly Rev. 42-57, 155-171 (1943), and ibid. 70, 181-202 (1954).

67 Lipstein, Cambridge Law Journal 138-141 (1956).

68 (1817) 6 Maule&Selwyn 92.

69 It is, of course, very doubtful if any court would today regard this a breach of international law, but the principle of the decision, it is suggested, is sound.

70 [1917] 2 Ch. 188.

71 (1883) 38 Ch. D. 348.

72 See, e.g., B. v. Keyn, 2 Ex. D. 63, 85 (England); The Charming Betsy, 2 Cranch 64, 118 (IT. 8.); Geoffrey&Delore v. Ins. Co. of Bulgaria, Sirey, 1920, II, 17 (France) ; B.G.E. 56, I, 237 (Switzerland); EGStr. 62, 369 (Germany); 32 Clunet 416, 420 (Belgium); Ex p. Koutalianos, Annual Digest 1943-1945, Case No. 62 (Australia); Croft v. Dunphy, [1933] 1 D.L.B. 225 (Canada); Mohammed Mohy-ud-din v. The King Emperor (1946), 8 F.C.B. 94 (India).

73 See Arts. 26 and 28 of the French Constitution of Oct. 27, 1946, and Art. 25 of the Grundgesetz of the West German Federal Bepublic enacted in 1949; Art. 98 of the Japanese Constitution of 1946; Art. 10 of the Italian Constitution of 1947.

74 Art. 100, par. 2, of the Grundgesetz of the West German Federal Bepublic entrusts this function to the Bundes-Verfassungsgericht.

75 The Anglo-Iranian Oil Co. Ltd. v. Jaffrate et al., [1953] 1 W.L.B. 246, 1953 Int. Law Rep. 316.

76 Accord: Recent German decisions on the effect of the Czechoslovak decrees of 1945 confiscating the property of Sudeten Germans without compensation. The persons affected were by Czech law foreigners, and hence the situation was governed by international law. The German courts held that according to the lex rei sitae at the time of the decrees, the property in question was transferred to the Czech Government, but that German courts must refuse recognition to the transfer which was “repugnant to ethical standards and public policy” and also to “international legal practice, which denies legal effects to all measures of foreign states constituting political ad hoc laws against certain groups of persons.” 1 Neue Juristische Wochenschrift 628 (1947-1948); 15 Zeitsehrift fiir Auslandisches und Internationales Privatrecht 141 (1947); Annual Digest 1948, Case No. 12; 1953 Int. Law Eep. 31-34. Contra: Anglo-Iranian Oil Co. v. Idemitsu Kosan Kabushiki Kaisha, High Ct. of Tokyo (1953), 1953 Int. Law Eep. 305; Anglo-Iranian Oil Co. v. Societa TJnione Petrolifera Orientale di Roma, H Gazzettino 67, No. 61, p. 4; Annual Digest, 1919-1942, Case No. 75.

77 Lipstein, Cambridge Law Journal 138-141 (1956); contra: Sir Hersch Lauterpacht, Cambridge Law Journal 20 (1954) ; E. Lauterpacht, 5 Int. and Comp. Law Q. 301 (1956); D. P. O'Connell, 4 ibid. 267 (1955).

78 The real objection to the case seems to be rather that Campbell, J., erred in limiting the effects of the act of state doctrine to acts affecting nationals of the foreign state, as to which there is sufficient authority to the contrary: Eicaud v. American Metal Company, 246 U.S. 304 (1918); Underbill v. Hernandez, 168 U.S. 250 (1897); O'Neill v.Central Leather Co., 87 N.J.L. 552; In Ee Claim Helbert Wagg, [1956] 1 Ch. 323, 348. The point is rather that acts of state which violate international law must be refused recognition and enforcement. Thus, if the United Nations Declaration on Human Rights were a binding treaty, treatment of nationals of the foreign state in violation of the Declaration would not be enforced by the court of the forum and a fortiori in the case of aliens.

79 1 Oppenheim, International Law 37-47 (8th ed., Lauterpacht, 1955).

80 Mann, , “International Delinquencies before Municipal Courts,” 70 Law Quarterly Rev. 181, 195 (1954).Google Scholar

81 Ibid. at 196. See Morgenstern, 4 Int. Law Q. 326, 330 (1951), for the suggestion that the courts of the forum should be able to inquire into the validity of acts of foreign states in the light of international law only if the courts of the foreign states are empowered to do likewise. To same effect, Lipstein, 35 Grotius Society Transactions 157, 180 (1949). It is suggested here that this power ought to exist whether or not the courts of the foreign state have the capacity to pass upon legislative or executive acts. If an international tribunal would apply “ t h e essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice, and, in particular, by the decisions of arbitral tribunals—that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” (P.C.I.J., in Case of the Chorzow Factory, Ser. A, No. 17, p. 47), then a municipal court should similarly “wipe o u t “ the international delinquency by disregarding it.

82 Naturally, a municipal court would only declare a foreign law contrary to international law if both the facts and the law were clearly established.

83 [1921] 3 K.B. 532.

84 [1929] 1 K.B. 718.

85 168 U.S. 250 (1897).

86 246 U.S. 297 (1918).

87 246 U.S. 304 (1918).

88 Admittedly it was pleaded in Oetjen v. Central Leather Co. that the seizure was contrary to the Hague Regulations. But the court observed, obiter, that (1) the Hague Regulations did not apply to civil wars; and (2) that, even if they did apply to civil wars, they did not forbid such seizures as had taken place. Therefore there was no violation of international law.

89 See the decision of the Tribunal of the Seine, July 13, 1915, 16 Rev. du Droit Int. Privé7 (1915), when it was held that a Brazilian law which imposed Brazilian nationality on all foreigners resident in Brazil who did not within six months claim their own nationality, contained “dispositions exorbitants du droit international,” and had to be disregarded. For refusal of a Hungarian court to recognize, on analogous grounds, a Russian marriage entered into by a Hungarian, see Annual Digest 1927-1928, Case No. 19.

90 See, for instance, Aboitiz&Co. v. Price, 99 F. Supp. 602 (C. D. Utah, 1951), and cases cited by Morgenstern, , “Validity of the Acts of the Belligerent Occupant,” 28 Brit. Yr. Bk. Int. Law 291, 317-320 (1951).Google Scholar

91 Mann, 70 Law Quarterly Rev. 180, 198 (1954).

92 [1921] 1 K.B. 456; rev'd, [1921] 3 K.B. 532.

93 168 U.S. 250 (1897).

94 Niboyet, Eev. de Droit Int. et de la Législation Comparée (1928) 753, 769, 770; Fedozzi, 27 Hague Academy Recueil des Cours 145, 221 (1929, I I ) ; Makarov, 74 ibid. 376 (1949); Wolff, Private International Law 175 (1945); McNair, Legal Effects of War 374-377 (3rd ed., 1948).

95 See Russian Commercial&Industrial Bank v. Comptoir d'Escompte de Mulhouse&Others, [1925] A.C. 112.

96 [1929] 1 K.B. 718.

97 At p. 723, per Scrutton, L. J.

98 [1941] 2 K.B. 239; [1942] 1 K.B. 445. Cf. King of the Hellenes v. Brostrom (1923), 16 LI. Eep. 190.

99 A/S Tallinna Laevauhisus v. Tallinn Shipping Co. (1947), 80 LI. Eep. 99 at 114,per Tucker, L. J.

100 Shapleigh v. Mier, 299 U.S. 468 (1937), on appeal from 83 F. 2d 673 (5th Cir. 1936). But see Eastern States Petroleum Co. v. Asiatic Corporation, 28 F. Supp. 279 (S.D.N.T. 1939). For similar cases in continental jurisprudence see Morgenstern, 4 Int. Law Q. 326, 331-332 (1951); Mann, 59 Law Quarterly Eev. 155, 160-162 (1943).

101 See Nussbaum, , ‘ ‘ The Problem of Proving Foreign Law,'’ 50 Tale Law J. 1018 (1940)Google Scholar, in which the learned writer cites an Austrian case to illustrate the difficulty involved in trying to determine complex constitutional issues of foreign law. See also 21 Brit. Yr. Bk. Int. Law 189 (1944), for comment on two relevant English cases.

102 See Cheshire, Private International Law 150-158 (5th ed., 1957); Wharton, Conflict of Laws, sec. 4(a) (3rd ed.); Westlake, Private International Law 51 (7th ed.); Habicht, Max, ‘ ‘ The Application of Soviet Laws and the Exception of Public Order,'’ 21 A.J.I.L. 238 (1927)Google Scholar; Kahn-Freund, 39 Grotius Soçiety Transactions 39-83 (1953); Nussbaum, , “Public Policy and the Political Crisis in the Conflict of Laws,” 49 Tale Law J. 1027-1036 (1940)Google Scholar; Lorenzen, Territoriality, Public Policy and the Conflict of Laws.

103 Dynamit Action Gesellschaft v. Bio Tinto Co. Ltd., [1918] A.C. 292, 302.

104 Loucks v. Standard Oil Co. of New York, 224 N.Y. 98 (1918).

105 Dicey, Conflict of Laws 512 (6th ed., 1949).

106 Cited note 68 above.

107 Cited note 70 above.

108 Luther v. Sagor, [1921] 3 K.B. 532, 558.

109 Ibid, at 559.

110 55 Clunet 674 (1928), Annual Digest 1927-1928, Case No. 43.

111 Sociéte’ Potasas Iberias v. Nathan Bloeh, Annual Digest 1938-1940, Case No. 54; see also ibid., Case No. 10; ibid. 1935-1937, Case No. 68. Cf. on identical issue The Navemar, ibid. 1938-1940, Case No. 68, at p. 182. See also Bouniatos v. SociSte Optorg, Clunet (1924), p. 133, which lays down that goods seized by a foreign government and transferred to a bona fide purchaser for value, who then transports them to France, may be recovered by the dispossessed owner, whether or not he is a French national. The test in French law seems to be the justice of the expropriation. Cf. Annual Digest 1949, Case No. 10; ibid., Case No. 14; and the many decisions cited by Lipstein, 35 Grotius Society Transactions 157, 173-178; O'Connell, 4 Int. and Comp. Law Q. 287-290 (1955), for relevant French, Belgian and Dutch cases.

112 277 N.Y. 474, 14 N.E. 2d 798 (1938), Annual Digest 1938-1940, Case No. 71.

113 The lower court had said indignantly: “And we are called upon to sanction the act. I say that our public policy does not compel us to give the act reinforcement. To give recognition to such conduct—though it pass for law in Germany would lacerate our conscience, traduce our Declaration of Independence, rend asunder our Constitutions, Federal and State, antagonize our traditions, mock our history, and outrage our whole philosophy of life.” 290 N.Y.S. 181 (Sup. Ct. Special Term, per Judge Collins), Annual Digest 1938-1940, Case No. 71, with comment by the editor.

114 78 F. 2d 325, 327 (1935). Accord: Dougherty v. Equitable Life Assurance Co.,266 N.Y. 71, 90, 193 N.E. 897, 903 (1934); see 29 Yale Law Journal 745, 757, 758 (1920); Comment, 32 ibid. 471, 473 (1923).

115 James&Co. v. Second Eussian Insurance Co., 239 N.Y. 248, 146 N.E. 369 (1925); Petrogradsky M. K. Bank v. National City Bank, 253 N.Y. 23, 170 N.E. 479 (1930); The “Vladikavkasky By. Co. v. The New York Trust Co., 263 N.Y. 369, 189 N.E. 450 (1934); Sulyok v. Penzintezetz Kozpont Budapest, 111 N.Y.8. 2d 75, 279 App. Div. 528 (1st Dept. 1952).

116 This being the formulation of the public policy rule in the Eestatement, Conflict of Laws, See. 612 (1934).

117 182 Misc. 776, 45 N.Y.S. 2d 882 (Sup. Ct. N.Y. 1943), Annual Digest 1943-1945, Case No. 2.

118 77 N.Y.S. 2d 43, 273 App. Div. 224, aff'd, 298 N.Y. 573, 81 N.E. 2d 106 (1948).

119 Bollack v. Sociéte’ Général etc., 33 N.Y.S. 2d 986, 263 App. Div. 601. See also Oscanyan v. Winchester Arms Co., 103 U.S. 261 (1880), in which the court refused to consider a Turkish law according to which the plaintiff, a representative of the Turkish Government, was allegedly permitted to agree with the defendant company on a commission for the sale of arms to the Government. That course of action was deemed “so repugnant to all our notions of right and morality that it can have no countenance in the courts of the United States “ ; and Weiss v. Lustig, 58 N.Y.S. 2d 547, 185 Misc. 910.

120 324 U.S. 30 (1945).

121 Ibid. at 35.

122 See especially Jaffe, Judicial Aspects of Foreign Relations 8-75; Mann, “Judiciary and Executive in Foreign Affairs,” 29 Grotius Society Transactions 143 (1943).

123 At a time when the British Government adamantly refused to recognize General Franco's forces as belligerents, or to allow that his administration constituted a sovereign government, the House of Lords in The Arantzazu Mendi [1939] A.C. 256, gave a decision which in effect recognized Nationalist Spain as a foreign Power. “This discrepancy neither disturbed the peace of the world nor caused any responsibility of, or inconvenience to the Executive.” (Mann, loc. cit. note 122 above.)

124 As illustrated, for instance, by the Bernstein decision.

125 Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham Steamship Co. Ltd., [1939] 2 K.B. 544, 552.

126 Jaffe, loc. cit. note 122 above, at 3.

127 Ibid, at 149.