Foreign Seizures

Foreign Seizures: Sabbatino and the Act of State Doctrine

Eugene F. Mooney
Copyright Date: 1967
Pages: 190
https://www.jstor.org/stable/j.ctt130jrhz
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  • Book Info
    Foreign Seizures
    Book Description:

    The United States Supreme Court framed a unique legal doctrine on foreign seizure of American-owned property in the case ofBanco Nacional de Cuba v. Sabbatinoin 1963. This ruling has far-reaching implications for international law, American foreign policy, and the role of the Court in both domestic and international arenas of power. Disagreeing with the Court's decisions, Eugene F. Mooney undertakes to place the Act of State Doctrine in its proper historical, jurisprudential, and political perspective.

    Mooney argues forcefully that the dogmatic application of the Act of State Doctrine is indefensible in light of its origin, the history of past application, and the pressing current requirements of our international economy.

    eISBN: 978-0-8131-6382-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. iii-iv)
  2. Table of Contents
    (pp. v-vi)
  3. INTRODUCTION
    (pp. 1-6)

    The american and French revolutions of the late 1700s are familiar historical events, but modern revolutions are equally familiar. Within the lifetime of any man under fifty years of age the world has been plagued by wars and almost continual civil strife. These political events have been invariably attended by seizures of private property by various nations. Even the following partial list of these transactions is impressive:

    Most nationalizations have occurred in the context of the on-going global process of organizing the territory of the earth into nation states. Since World War II this process has taken the form of...

  4. 1 GENESIS OF THE ACT OF STATE DOCTRINE
    (pp. 7-17)

    The act ofState Doctrine is said to have begun during the dawn of Anglo-American jurisprudence withBlads Casein 1674. The report of the facts in this case is a little confusing, and the judgment of the court was obviously colored somewhat by the domestic squabble between English law courts and chancery courts, which was still going on even at that date, but the Doctrine can be spelled out by a close reading of the opinion.

    England and Denmark had executed a peace treaty which ostensibly permitted free trade among their citizens and territories. Bamfield, an English citizen who...

  5. 2 SOUTH AMERICAN SEIZURES
    (pp. 18-36)

    The act of stateDoctrine was formulated against a background of United States foreign policy for South America and has been most vigorously applied in cases concerning events occurring south of the border. This aspect of the Doctrine was noted in 1929 by J. Scrutton, in thePrirzcess Paley Olgacase:

    The United States situate in the neighborhood of South and Central American Republics, where the life of any Government is precarious and its death rarely by natural causes, frequently found in its territory property seized by a revolutionary force which ultimately succeeded in establishing itself in power and there...

  6. 3 EUROPEAN SEIZURES
    (pp. 37-72)

    Judicial treatmentaccorded European seizures over the years reveals a predictable pattern of resistance to some foreign laws but not to others. This pattern is not at all in harmony with a rigorous “legal” application of accepted principles of law. Resistance to “Communist” law is clear and vigorous, but judicial antagonism is not so pronounced toward “Nazi” seizures. The international political relationship of a foreign nation with the United States at the time of the suit is one of the most important factors in foreign seizure lawsuits brought before American courts. For the most part, Communist seizure cases involved attempts...

  7. 4 THE SABBATINO CASE
    (pp. 73-97)

    The united statesDepartment of State had never been directly involved in a foreign seizure case before the United States Supreme Court prior to theSabbatinocase in 1963. Its presence in that case was important to the decision; perhaps it was actually determinative. This importance appears clearly from the history of the development of the Act of State Doctrine, the Pink case decision in 1942, and—most significantly—from the intervention by the State Department in the secondBernsteincase in 1954 by issuance of its official letter. Genuine irony resides in the fact that the “unleashing” of American...

  8. 5 SABBATINO AFTERMATH
    (pp. 98-132)

    The floweringof the Act of State Doctrine has doubtless resulted from the tendency of British and American judges to accept the word-formula uncritically and thus multiply the judicial opinions in which it appears as an apparent factor. A recent commentator notes witheringly:

    In none of the principal American decisions did any question of the validity of the act of state ever arise, and therefore remarks addressed to the subject were merely obiter; but, seized upon and reiterated by judges in countless subsequent cases, the principle is now, it must be admitted, taken by many to be a separate rule...

  9. 6 A NEW JUDICIAL POLICY BASIS
    (pp. 133-152)

    A Judicial Policyappropriate for Act of State Doctrine situations lies within the framework of the current national and international consensus and concerns both the political and economic processes of the world community. A realistic Act of State Doctrine for American courts can and should be judicially formulated to satisfy legitimate international and national demands. The Hickenlooper Amendment offers the foundation. Frank appraisal of contemporary political, economic, and juridical factors is the point of beginning for the venture.

    American foreign policy since World War II has been dominated by the Cold War. Our temporary military alliance with the Soviets against...

  10. CODA
    (pp. 153-160)

    Nations of theworld have long maintained a comprehensive legal system among themselves in order to secure the advantages of an international economy. An elaborate set of legal principles, comprising the whole of private international law and much of public international law, embodies the best intellectual efforts of mankind expended in solving the considerable problems inherent in this grand design. The keystone of this system is the arrangement which provides for allocation of jurisdictional competences concerning events occurring transnationally.

    One set of these principles authorizes a state to prescribe and apply its own policies for the regulation of particular events,...

  11. APPENDIX I A BIBLIOGRAPHY OF SCHOLARLY COMMENT ON THE ACT OF STATE DOCTRINE, THE SABBATINO CASE, AND THE HICKENLOOPER AMENDMENT
    (pp. 161-164)
  12. APPENDIX II INTERNATIONAL PATTERN OF APPLICATION OF THE ACT OF STATE DOCTRINE
    (pp. 165-177)
  13. TABLE OF CASES
    (pp. 178-181)
  14. INDEX
    (pp. 182-186)