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Bancoult v. McNamara (D.D.C., No. 01-CV-2629, filed Dec. 20 2001)

See also, Federal Tort Claims Act, Alien Tort Claims Act

Other defenses and issues

by Charles Judson Harwood Jr.

Even if the US Court decides it otherwise has jurisdiction to award damages against the United States, or at least a declaratory judgment and an injunction, US Government lawyers might claim: (a) the Chagos islanders have no ‘standing’ to complain about the wrong done to them by the US Government, (b) there’s no ‘case or controversy’ (US Courts have no authority to issue advisory opinions on abstract questions), and (c) the ‘act of state’ doctrine blocks their complaint.

Coming up: ‘standing’ and ‘case or controversy’.


The ‘act of state’ doctrine is not an attack on the jurisdiction of the US Court. But it’s the very next attack. If the Court holds it has jurisdiction to hear the complaint of the victims, the US Government lawyers can be expected to file a ‘motion to dismiss for failure to state a claim upon which relief may be granted’.

The US Government lawyers might argue that in order to grant relief to the Chagos islanders the Court would have to “declare invalid the official act of a foreign sovereign performed within its own territory” (the Chagos Archipelego). The United Kingdom Government deported/exiled the Chagos islanders. That’s a matter of their internal affairs. It’s no business of a US Court to disagree and hold they shouldn’t have done it, or continue to do it, even if it violates international law. United States Officers did indeed incite and aid and abet, but they did so vis a vis a foreign ‘act of state’ which the US Court cannot declare invalid.

But the United Kingdom changed its mind: A UK Court held its action was unlawful (Nov. 3 2000); the Court’s decision is final and was not appealed (Nov. 10 2000); and the UK Government announced in Parliament that it accepted the Court’s decision (Nov. 13 2000). In order to grant the Chagos islanders relief, therefore, the US Court need merely accept as valid “the official act of a foreign sovereign performed within its own territory” (the one where it changed it’s mind) {493 U.S. 400, 406}:

“In every case in which we have held the act of state doctrine applicable, the relief sought or the defense interposed would have required a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory....

Act of state issues only arise when a court must decide — that is, when the outcome of the case turns upon — the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine..... {493 U.S. 400, 409}

The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the {493 U.S. 400, 410} present case because the validity of no foreign sovereign act is at issue.”

Kirkpatrick Co. v. Environmental Tectonics Corp., 493 U.S. 400, 406, 409-410 (Jan. 17 1990) (complaint for damages alleging Kirkpatrick obtained a construction contract from the Nigerian Government by bribing Nigerian officials in violation of Nigerian law is not blocked by the ‘act of state’ doctrine — even if a US Court finds foreign officials performed official acts in return for unlawful bribes, and even if this creates embarrassment to the US Executive Branch in its conduct of foreign relations — “because nothing in the present suit requires a court to declare invalid the official act of a foreign sovereign” (quoting the Court’s syllabus)).

The UK Government — though claiming in Parliament the islanders are free to return to their outer islands — are nevertheless secretly preventing them from doing so.

An aside:  UK Government officials can lawfully lie to Parliament, both willfully, and as innocent or reckless agents of the willful liars who brief them (eg: the Military). And these liar-briefers could also lawfully lie directly to Parliament themselves, instead of putting their lies into the mouth of an innocent/reckless politician. And I wonder if this is why the dossier about Saddam Hussein’s supposed weapons program (prepared by the US Government) was announced to the world by British Prime Minister Tony Blair to the UK Parliament, and not by President George W. Bush, or one of his officials, to the US Congress, where lies are a crime.

These secret actions are therefore taken by British officials in violation of their own ‘act of state’. They also claim they are prevented by the terms of their joint-venture agreement with the United States from allowing the islanders to return to their homeland island of Diego Garcia, the site of the US military base.

Queries (coming-up): Does the act of state doctrine prevent the US Court from issuing a declaratory judgment that the US/UK agreement is unlawful, insofar as it excludes the islanders from their homeland? This agreement is an act of state by the US as well as the UK, and the act of state doctrine does not prevent the US Court from issuing a declaratory judgment against the United States about the agreement’s legality. But is the (claimed) informal opinion of UK Government officials about its obligations under the agreement a formal ‘act of state’ by the UK? And, if so, does that override the US Court’s authority to declare the agreement’s legality? And, does the UK Court’s decision (in effect: that the agreement is unlawful in this respect) constitute an ‘act of state’ by the UK?

Court decisions are not normally an act of state, as they usually declare rights of private litigants. But this UK court decision surely was an act of state, as the litigants were the state (The Queen, ex parte Bancoult v. Foreign and Commonwealth Office) and the issue being litigated was precisely the validity of the very act of state at issue in the US case. In any event the UK Government ratified the UK Court decision by not appealling and by formally announcing in Parliament that it accepted the ruling. The final result sounds to me like an ‘act of state’.

If the US Court were to decline to declare its opinion about the joint-venture agreement, then this would be an excellent mechanism for future such criminal conspiracies: Just get a dependent, cooperative foreign government to sign-on to your agreement and you’re immune from all courts. That’s more foolproof than bribing the Judge.

Coming-up: unlawful acts of state (international consensus and jus cogens).



  Injunction to hire islanders to work on the military base: What the Chagos islanders want most, but is it their least likely remedy?

Tucker Act (non-tort money claims) 28 U.S.C. § 1491: Removal to Claims Court for claims above $10,000 and, thereby, loss of declaratory judgment remedy; Bowen v. Massachusetts 487 U.S. 879 (1988).

Supplemental jurisdiction, 28 U.S.C. § 1367: Additional tort-claims under District of Columbia, Virginia, and United Kingdom law.


Return to Bancoult v. McNamara (D.D.C., No. 01-CV-2629, filed Dec. 20 2001).

Back to Alien Tort Claims Act.

Back to Federal Tort Claims Act.

© 2002 Charles Judson Harwood Jr.

This document may be freely quoted.


Posted Sept. 1 2002. Updated Nov. 3 2002