REPUBLIC OF PHILIPPINESv.

MARCOS: THE NINTH CIRCUIT ALLOWS A FORMER RULER TO INVOKE THE ACT OF STATE DOCTRINE AGAINST A RESISTING SOVEREIGN
TRACIE

A. SUNDACK

INTRODUCTION

Article II of the United States Constitution grants the executive branch power to conduct foreign relations.' United States7 courts adjudicating disputes in which a foreign official is a defendant, however, may interfere with the executive's efforts to convey a unified foreign policy by ruling contrary to the executive's wishes. 2 The act of state doctrine precludes judicial review of official acts that a rec3 ognized foreign sovereign commits within its own territory.
1. Article II of the United States Constitution provides in pertinent part: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States .. " U.S. CONsT. art. II, 2, cl. 1. "He shall have Power... to make Treaties ... shall appoint Ambassadors, other public Ministers and Consuls...." U.S. CoNsr. art. II, 2, cl. 2. "[Hie shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed .. " U.S. CONsT. art. II, 3. Some theorists, however, state that article II allows the judiciary to decide questions involving United States
foreign relations. See Swan, Act of State at Bay: A Plea on Behalfof the Elusive Doctrine, 1976 DUKE

LJ. 807, 849 (acknowledging controversy regarding role of judiciary in foreign disputes). Thus, the framers implicitly created the power in the judiciary to adjudicate foreign policy matters. Id. See U.S. CONsT. art. III (granting judiciary power to hear cases between state citizens and foreign nations or citizens); but see United States v. Curtis-Wright Corp., 299 U.S. 304, 319 (1936) (stating "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations" (quotingJohn Marshall, as member of House of Representatives)). 2. See Baker v. Carr, 369 U.S. 186, 211 (1962) (recognizing that foreign affairs questions require single voiced statement of government's views); International Ass'n of Machinists v. OPEC, 649 F.2d 1354, 1358 (9th Cir. 1981) (stating that participation in global community requires United States to speak with one voice), cert. denied, 454 U.S. 1163 (1982); see also Moore, Federalism and Foreign Relations, 1965 DUKE LJ. 248, 273-74 (noting nations get more accurate perception of other country's foreign policy from one voice, from which opposing nation frames its own policy). 3. The United States and several other countries recognize the act of state doctrine. See RESTATEMENT (SECOND) FOREIGN RELATIONS LAw OF THE UNITED STATES 41, Reporters
Notes (Tent. Draft No. 7, 1986) (stating that English courts will not determine validity of actions of foreign government (citing Aksionaire Obschestro v. Sagor, 3 K.B. 532 (C.A.

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The rationale underlying the doctrine is to prevent United States

1921))). Proponents of this doctrine reason that such restraint prevents thejudiciary from interfering with the role of the executive branch in promoting foreign relations. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-37 (1964) (characterizing policy underlying act of state doctrine as separation of powers). United States courts apply the doctrine even if the act of a foreign sovereign violates United States public policy. See id. at 421-23 (rejecting Second Circuit's holding that act of state doctrine does not apply to actions in violation of international law). The doctrine is applicable when a foreign sovereign is a plaintiff or a defendant. See, e.g., First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 772 (1972) (Douglas, J., concurring) (explaining that apart from cases when another nation is at war with United States, sovereign states are allowed to sue in United States courts); Sabbatino, 376 U.S. at 437-38 (noting act of state doctrine is applicable even though foreign sovereign is a plaintiff in United States); Republic of Philippines v. Marcos, 806 F.2d 344, 356-57 (2d Cir. 1986) ("Marcos I")(holding that Philippine Government's suit to enjoin its former president from transferring property located within United States was justiciable), cert. denied, 107 S. Ct. 2178 (1987); Frazier v. Foreign Bondholders Protective Council, Inc., 283 A.D. 2d 44, 45, 125 N.Y.S.2d 900, 901 (1953) (refusing to adjudicate suit when foreign government sued through agent); see also infra notes 14107 and accompanying text (describing judicially created act of state doctrine). Courts have characterized many types of governmental actions as sufficiently public to invoke the act of state doctrine. Many courts have focused primarily on whether adjudication would interfere with United States foreign policy. See, e.g., Sabbatino, 376 U.S. at 432-33 (holding that courts determining validity of foreign acts of state may hinder foreign policy goals); United States v. Pink, 315 U.S. 203, 233-34 (1942) (noting inquiry based on state law might seriously thwart American foreign policy); Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (holding act of state doctrine precludes United States courts from adjudicating Venezuelan military official's refusal to issue passport to United States citizen); DeRoburt v. Gannett Co., 733 F.2d 701, 703 (9th Cir. 1984) (stating act of state doctrine prevents courts from determining validity of loans made by foreign ruler), cert. denied, 469 U.S. 1159 (1985); International Ass'n of Machinists v. OPEC, 649 F.2d 1354, 1361 (9th Cir. 1981) (refusing to decide whether OPEC's price fixing activities should be declared illegal because adjudication would interfere with United States foreign policy), cert. denied, 454 U.S. 1163 (1982); Frolova v. USSR, 558 F. Supp. 358, 361 (N.D. Il.1983) (stating doctrine barred United States courts from examining Soviet Union's refusal to allow plaintiff's husband to emigrate to United States), aft'd, 761 F.2d 570 (7th Cir. 1985); but see Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 685 (1976) (plurality opinion) (holding act of state doctrine inapplicable when foreign sovereign engaged in "commercial activities"); City Bank, 406 U.S. at 767-68 (plurality opinion) (arguing courts may determine validity of foreign government's expropriation when executive states that adjudication will not interfere with foreign relations); Marcos 1, 806 F.2d at 359 (suggesting justification for application of act of state doctrine is weak when foreign government requests scrutiny of its actions because court would be unlikely to interfere with foreign relations). Courts have applied the act of state doctrine in numerous situations. See, e.g., Sabbatino, 376 U.S. at 401 (refusing to adjudicate Cuban Government's expropriation of property because barred by act of state doctrine); Underhill, 168 U.S. at 252 (applying doctrine to shield state officials' act of false imprisonment); Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 362-63 (2d Cir. 1964) (stating act of state doctrine precludes courts from inquiring into validity of acts of recognized sovereign committed within its own territory), cert. denied, 381 U.S. 934 (1965); Pons v. Republic of Cuba, 294 F.2d 925, 926 (D.C. Cir. 1961) (noting that United States may notjudge actions foreign sovereign takes against its own citizens), cert. denied, 368 U.S. 960 (1962); Banco de Espana v. Federal Reserve Bank, 114 F.2d 438, 442 (2d Cir. 1940) (holding United States courts may not determine whether foreign sovereign violated its own laws); National Inst. of Agrarian Reform v. Kane, 153 So.2d 40, 43 (Fla. Dist. Ct. App. 1963) (noting act of state doctrine bars determination of validity of Cuban expropriation, notwithstanding fact that expropriation may have been discriminatory, arbitrary, and confiscatory); Three Stars Trading Co. v. Republic of Cuba, 32 Misc. 2d 4, 5, 222 N.Y.S.2d 675, 676 (Sup. Ct. 1961) (holding foreign sovereign immune from suit for governmental action committed within own territory); see also D'Angelo v. Petroleos Mexicanos, 331 A.2d 388, 391-92 (Del. 1974) (stating application of act of state doctrine limits issues, but does not deprive court ofjurisdiction).

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courts from issuing adverse judgments against foreign officials, thereby embarrassing relations and interfering with the executive branch's conduct of foreign affairs. 4 Although in theory this is a valid justification, the practical application of the doctrine results in a decision which immunizes a foreign government from suit and leaves a plaintiff without recourse. 5 In order to promote international comity 6 and to avoid injustice to such plaintiffs, courts have

created specific exceptions to the doctrine. 7 For example, some courts have held that illegal activities of foreign officials do not constitute public acts, and therefore the act of state doctrine does not protect them.8 In so ruling, the courts have reasoned that a ruler's
4. Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404,406 (9th Cir.), cert. denied, 464 U.S. 1040 (1983). 5. See id. at 409 (holding act of state doctrine bars plaintiff's claim involving foreign sovereign even though plaintiff left without impartial jurisdiction to file suit); Hunt v. Mobil Oil Corp., 550 F.2d 68, 79 (2d Cir.) (leaving plaintiff without recourse against oil company because suit could implicate Libyan Government), cert. denied, 434 U.S. 984 (1977). See infra notes 52-107 and accompanying text (discussing exceptions to act of state doctrine). 6. Comity requires sovereign nations to recognize the legislative, executive, andjudicial actions of every other sovereign nation. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 420 (1964) (stating comity is neither matter of absolute obligation nor mere courtesy and good will toward other nations (citing Hilton v. Guyot, 159 U.S. 113, 163-64 (1890))). 7. Courts have developed numerous exceptions to the act of state doctrine. See, e.g., Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 690 (1976) (plurality opinion) (refusing to apply act of state doctrine when sovereign engages in "commercial activities");Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962) (holding criminal actions of dictator were for his own benefit, and therefore, severable from his official actions), cert. denied, 373 U.S. 914 (1963); Bernstein v. N.V. Nederlandsche-Amerikaansche StoomvaartMaatschappij, 173 F.2d 375, 376 (2d Cir. 1954) (noting exception when executive authorizes adjudication); see also Sabbatino, 376 U.S. at 427-28 (asserting that act of state doctrine does not apply when judicial inquiry would not disturb proper distributions of functions between branches of government in foreign affairs); First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767-68 (1972) (applying Bernstein exception to expropriation); Marcos I, 806 F.2d at 354 (suggesting court less justified in applying act of state doctrine when foreign state asks court to scrutinize its actions); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1502 (D.C. Cir. 1984) (en banc) (refusing to apply act of state doctrine because alleged expropriation had not been completed in foreign country), vacatedmem., 105 S. Ct. 2353 (1987); Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2d Cir. 1965) (holding act of state doctrine does not insulate confiscatory decree affecting property within United States), cert. denied, 382 U.S. 1027 (1966); cf In re GrandJury Proceedings,John Doe No. 700,817 F.2d 1108, 1110-11 (4th Cir.) (permitting government to waive former ruler's head of state immunity), cert. denied sub nom. Marcos v. United States, 108 S. Ct. 212 (1987). But see Kalamazoo Spice Extraction Co. v. Provisional Military Gov't of Socialist Ethiopia, 729 F.2d 422, 427-28 (6th Cir. 1984) (holding courts should adjudicate acts of state when treaty articulates controlling legal principles). Some commentators argue, however, that the Sixth Circuit's ruling in Kalamazoo was based on executive and American Bar Association influence. See Bayzler, Abolishing the Act of State Doctrine, 134 U. PA. L. REv. 325, 372 (1986) (noting State Department and American Bar Association urged court to recognize treaty exception). 8. See, e.g., DeRoburt v. Gannett Co., 733 F.2d 701, 704 (9th Cir. 1984) (noting ruler may sue and be sued in his capacity as private citizen), cert. denied, 469 U.S. 1159 (1985); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980) (dicta) (observing that police officer's unratified violation of alien tort statute was not act of state); Jimenez v. Aristeguieta, 311 F.2d 547, 557 (5th Cir. 1962) (holding act of state doctrine applicable only when ruler acting in

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illegal activities are crimes against his nation, thereby constituting private activities, such that adjudication would not interfere with the doctrine's goals. 9 In Republic of Philippines v. Marcos,'0 (Marcos 11), the United States Court of Appeals for the Ninth Circuit refused the current Philippine Government's request to freeze property of former President Ferdinand Marcos, allegedly purchased with money he stole from the Philippine Government, pending a hearing on the merits. 1 ' The court held that Marcos' activities were public actions, even if illegal under Philippine law and, therefore, the act of state doctrine precluded judicial review. 1 2 The court also stated that adjudication of the dispute would unduly interfere with foreign relations, despite the joint request of the Philippine Government and the United States executive branch to waive the doctrine.' 3 This Note analyzes the Marcos II decision in light of prior decisions utilizing the act of state doctrine. Part I presents the historical background of the doctrine. Part II discusses the procedural and factual history of Marcos II. Part III analyzes the court's opinion and rationale in Marcos II in view of prior cases addressing the purpose and exceptions to the doctrine. This Note concludes that the Ninth Circuit's decision in Marcos II defies the purposes of the act of state doctrine, and will ultimately only cause friction between the United States and the Philippines. I.
HISTORICAL BACKGROUND OF THE ACT OF STATE DOCTRINE

A.

Common Law Origins

An examination of the historical development of the act of state doctrine is essential to an evaluation of the Ninth Circuit's decision in Marcos 11. Act of state immunity was derived from sovereign immunity, a creation of twelfth century English monarchs which protected them from civil suit. 1 4 With the decline of the monarchy, the
official capacity), cert. denied, 373 U.S. 914 (1963). See also Republic of Philippines v. Marcos, 806 F.2d 344, 359 (1986) (noting deposed ruler did not prove illegal actions were sovereign

acts); Sharon v. Time, Inc., 599 F. Supp. 538, 545 (S.D.N.Y. 1984) (stating government official's unratified violation of laws was not act of state). 9. See infra notes 89-94 and accompanying text (discussing what constitutes private actions of rulers). 10. Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir.) ("Marcos II"), reh'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc). 11. Id. at 1490. 12. Id. at 1482-85. 13. Id. at 1485-89.
14. See Comment, Act of State and Sovereign Immunities Doctrines: The Need to Establish Con-

gruity, 17 U.S.F. L. REv. 91, 93-94 (1982) (stating that act of state doctrine is corollary to sovereign immunity). Courts have long recognized the common origin of the two doctrines.

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state replaced the king as the sovereign entity, and state officials became the symbols of the new government.1 5 Sovereign immunity, however, protected only the state from sUit. 16 The act of state doctrine arose to protect state officials acting on behalf of the sovereign
from suit.17

The United States Supreme Court laid the foundation for the act of state doctrine in 1812 in The Schooner Exchange v. McFaddon,18 when it stated that the United States must respect the independence
See, e.g., Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 146 (1812) (emphasizing close dependence of act of state immunity upon sovereign immunity); Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 520 (2d Cir. 1985) (stating act of state doctrine previously linked with principles of sovereign immunity), cert. dismissed, 473 U.S. 934 (1985); Libra Bank Ltd. v. Banco Nacional de Costa Rica, 570 F. Supp. 870, 876 (S.D.N.Y. 1983) (noting act of state doctrine long rooted in principles of sovereign immunity). The sovereign immunity doctrine prohibits United States courts from adjudicating any suit in which a foreign state is a defendant. Schooner Exch., 11 U.S. at 146. By contrast, the act of state doctrine, rather than barring adjudication, accords presumptive validity to official acts of a sovereign. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 438 (1964); see also National Am. Corp. v. Federal Republic of Nigeria, 448 F. Supp. 622, 640 (S.D.N.Y. 1978) (explaining sovereign immunity raises jurisdictional bar, while act of state doctrine functions as issue preclusion device), aff'd, 597 F.2d 314 (2d Cir. 1979); Henkon, Act of State Today: Recollections in Tranquility, 6 COL.J. TRANSNAT'L L. 175, 178-80, 187-88 (1967) (comparing sovereign and act of state immunities); R. FALK, THE ROLE OF DoMEsTIC COURTS IN THE INTERNATIONAL LEGAL ORDER 96-102 (1964) (describing similarities and differences of act of state and sovereign immunity doctrines). The two doctrines share the same rationale. Sovereign states are equal and independent. Schooner Exch., 11 U.S. at 146. ChiefJustice Marshall stated that each nation possesses complete and absolute sovereignty within its own territory. Id. at 136. One nation cannot judge the rights of another nation without implying its own superiority. Id. In practice, nations had refused to prosecute other nations for wrongful actions within the other nation's territory. See Underhill v. Hernandez, 168 U.S. 250, 253 (1897) (noting act of state doctrine requires every state to respect independence of every other sovereign by not judging acts of another sovereign done within its own territory). Through common usage, states began to expect such treatment. Id.; see also West v. Multibanco Comermex, S.A., 807 F.2d 820, 828 (9th Cir.) (explaining one sovereign's evaluation of other nation's laws, at least in absence of foreign government's consent, intrudes upon state's coequal status), cert. denied, 107 S. Ct. 2483 (1987); DeRoburt v. Gannett Co., 733 F.2d 701, 712 (9th Cir. 1984) (barring libel suit on grounds that adjudication would require courts to judge foreign policies), cert. denied, 469 U.S. 1159 (1985); Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N.Y. 474, 478, 14 N.E.2d 798, 802 (Ct. App. 1938) (noting act of state doctrine bars United States courts from reviewing German confiscatory act); Wulfsohn v. Russian Socialist Federated Soviet Rep., 234 N.Y. 372, 377, 138 N.E. 24, 29 (Ct. App. 1923) (prohibiting examination of sovereign nation's actions to avoid implication that United States'judgment is superior). Thejudiciary should avoid adjudicating disputes involving foreign affairs because the executive branch is the most competent in that area. See Ex ParteRepublic of Peru, 318 U.S. 576, 588-89 (1943) (noting doctrines allow judiciary to respect actions of executive and not embarrass foreign relations); Schooner Exch., I1 U.S. at 144-46 (arguing principles of act of state and sovereign immunity doctrines prevent judiciary from embarrassing executive branch). 15. See Bayzler, supra note 7, at 330-31 (examining history of act of state doctrine); Comment, supra note 14, at 93 (reviewing development of act of state doctrine in England). 16. Bayzler, supra note 7, at 330-31. 17. See Comment, supra note 14, at 93 (noting that act of state doctrine arose to protect state officials); see generallyJones,Act of Foreign State in English Law: The Ghost Goes East, 22 VA.J. INT'L L. 433 (1982) (tracing development of act of state doctrine in England). 18. 11 U.S. (7 Cranch) 116 (1812).

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and sovereignty of every nation. 19 The Court, noting that nations ordinarily maintain absolute jurisdiction within their own territory, explained that a nation cannot adjudicate another nation's rights without implying that its judgment is superior.2 0 Moreover, any affront to the official representatives of a government would also insult the sovereign. 2 ' To avoid inferences of inequality, all sovereigns had, therefore, either expressly or implicitly relinquished their absolute territorial jurisdiction to shield states entering a forthat countries eign country from suit.2 2 The Court noted, however, 23 could withdraw such consent upon advance notice. The United States Supreme Court first recognized the act of state doctrine as a doctrine distinct from sovereign immunity in 1897, 2 4 In Underhill, an American when it decided Underhill v. Hernandez. citizen alleged that a Venezuelan military commander refused to grant him a passport in an attempt to force him to remain in Venezuela. 25 The Court, affirming the circuit court's judgment for the defendant, stated that the Venezuelan general, as head of the de 26 facto government, was not civilly responsible for his actions. Chief Justice Fuller noted in dictum that every sovereign must respect the independence of all other sovereigns. 2 7 The courts in one
19. Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 120 (1812). 20. Id. at 136. In Schooner Exchange, the plaintiffs sought to attach a French vessel, which the French Government had seized. Id. The Supreme Court refused to attach the vessel because the principle of sovereign immunity shielded the French Government from suit. Id. at 119. The Court also noted that act of state and sovereign immunity shared a common origin. Id. at 120. 21. Id. 22. Id. at 137. 23. Id. The Court required notice, however, because the practice of extending immunity was so widespread that other nations justifiably expected such immunity. Id. 24. 168 U.S. 250, 253 (1897). Some historians argue that the political situation in Venezuela from 1877-1899 influenced the Supreme Court in changing the doctrine. Because of an American law providing that the success of a new government accords retroactive validity to all of its acts, an application of sovereign immunity would have accorded immunity to the provisional government. See Gordon, The Origins of the Act of State Doctrine, 8 Rut.-CM. LJ. 595, 615 (1977) (describing rationale for act of state doctrine). 25. Underhill v. Hernandez, 168 U.S. 250, 253 (1897). 26. Id. at 254. 27. Id. at 252. The language in Underhill,focusing on the acts of the foreign government, extended the act of state doctrine from an emphasis on granting personal immunity to a focus on the acts of the state itself. See Comment, Act of State and Sovereign Immunities Doctrines: The Need to Establish Congruity, 17 U.S.F. L. REv. 91, 96 (1982) (foreign state is only immune for its public acts, not if it functions as private party). Because the Court's decision was based on personal immunity grounds, the "classic American statement" was superfluous. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964) (characterizing dictum in Underhill as "classic American statement"). See Zander, The Act of State Doctrine, 53 AM.J. Iwr'L L. 826 (1959) (characterizing language in Underhill as dictum); Comment, The Act of State Doctrine: A History ofJudicialLimitations and Exceptions, 18 HARv. INT'L LJ. 677, 680 (1977) (describing language in Underhill as "superfluous"). See also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1533 (D.C. Cir. 1984), vacated mein., 105 S. Ct. 2353 (1985) (noting traditional formulation of act of state doctrine found in Underhill dictum).

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country should not judge governmental acts of another sovereign done within its own territory because adjudication would infringe 28 upon the other nation's autonomy. B. Rationales Underlying the Act of State Doctrine

Courts apply the act of state doctrine based on various theories including the conflict of laws theory, the theory ofjudicial deference 29 to the executive branch, and the theory of international comity. According to the conflict of laws theory, the act of state doctrine requires courts to presume that the official actions of sovereigns would be valid under foreign law. 3 0 When a foreign act of state occurs within the foreign sovereign's territory, choice of law principles require application of foreign law. 3 ' Moreover, under traditional choice of law principles, the forum court may refuse to apply foreign law if the foreign law violates the forum's public policy.3 2 The act of state doctrine, however, precludes courts from challenging the foreign law.3 3 Accordingly, a United States court may adjudicate a dispute against a foreign official, but cannot question the legality of the
28. Underhill v. Hernandez, 168 U.S. 250, 252 (1897). In the following years, the Supreme Court reiterated this policy in applying the doctrine. See, e.g., Ricaud v. American Metal Co., 246 U.S. 304, 309 (1918) (noting courts of one nation will not judge another nation's actions committed within the sovereign's own territory); Oetjen v. Central Leather Co., 246 U.S. 297, 300 (1918) (applying act of state doctrine to dispute in which Mexican leader seized plaintiff's property and sold it to defendant); American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (arguing courts can not judge sovereign acts of other nations); cf Hunt v. Mobil Oil Corp., 550 F.2d 68, 79 (2d Cir.) (upholding defendant's claim that act of state doctrine foreclosed adjudication of alleged antitrust violation because adjudication would require evaluation of Libya's governmental action), cert. denied, 434 U.S. 984 (1977). 29. See infra notes 30-51 and accompanying text (discussing rationales for act of state doctrine).
30. RESTATEMENT (SECOND) OF CONFLICT OF LAws 1 (1971) (defining choice of law as

body ofjurisprudence that recognizes that world is composed of territorial states having separate and differing systems of law; events occur that may significantly affect more than one state creating necessity for special body of rules); Sabbatino, 376 U.S. at 446 (White, J., dissenting) (arguing courts may apply international law to foreign acts of state in violation of international law); Sharon v. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1984) (noting doctrine does not result in loss of jurisdiction, but in rule of law to make decision). 31. See RESTATEMENT (SECOND) OF CONFLICT OF LAws 6 (1971) (describing choice of law principles). 32. Id. 90. 33. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 446 (1964) (White, J., dissenting); see also RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 469, Reporters' Note 1 (Tent. draft No. 7 1986) (explaining choice of law theory). See Ricaud v. American Metal Co., 246 U.S. 304, 309-10 (1918) (holding act within boundaries of one sovereign cannot become subject of reexamination in courts of another); American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (stating law of country determines whether act is lawful or unlawful). In Oetjen v. Central Leather Co., 246 U.S. 297 (1918), the Supr eme Court invoked the theory of comity as well as the theory of choice of law to recognize the acts of the Mexican Government. Id. at 304.

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official's actions. The Supreme Court derived a second theory, the theory of international comity, from the theory of conflict of laws. 3 5 The principle of comity requires courts to demonstrate respect for foreign nations by permitting them to adjudicate their own disputes. 36 Accordingly, United States courts could not adjudicate the validity of the acts of other sovereigns because a negative determination would jeopard37 ize peace between the nations. A third theory, the theory of judicial deference to the executive, states that the act of state doctrine is primarily justified becausejudicial review of the public acts of a foreign power could interfere with the United States executive branch's conduct of foreign affairs with respect to that country.3 8 Accordingly, courts should abstain from deciding cases involving acts of a foreign sovereign because a judi34. See Sabbatino, 376 U.S. at 446-50 (White, J., dissenting). In the early twentieth century, the Supreme Court applied the act of state doctrine to bar cases based on the theory of conflict of laws. See Ricaud v. American Metal Co., 246 U.S. 304, 309 (1918) (arguing courts cannot question actions of foreign sovereigns); American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (stating principles of comity prevent court from interfering with executive decisions of another sovereign). Justice Holmes held in the 1909 case of Ameican Banana Co. that the act of state doctrine barred the United States froi applying its antitrust laws to a conspiracy in the United States to do acts in another jurisdiction, which would be illegal if performed here. Id. at 359. 35. Oetjen v. Central Leather Co., 246 U.S. 297, 304 (1918) (stating courts may not apply forum's law to actions of foreign official committed in foreign sovereign's territory); Ricaud, 246 U.S. at 309 (holding that United States courts must assume that actions of foreign governments are proper). 36. Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689, 695 (1977). 37. See Oetjen, 246 U.S. at 304 (holding that to permit courts to examine validity of acts of another sovereign would "imperil the amicable relations between governments and vex the peace of nations"). 38. First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1971) (plurality opinion of Rehnquist, J.) (citing Underhill v. Hernandez, 168 U.S. 250, 253 (1897)). The theory ofjudicial deference to the executive is based on the premise that the executive branch has the power to control foreign relations. See supra notes 1-3 and accompanying text (discussing role of executive in foreign affairs). Another theory is that the act of state doctrine is based on the political question doctrine. The political question doctrine states that the executive and legislature have the exclusive power to conduct foreign affairs. Oetjen, 246 U.S. at 302. Accordingly, the judiciary should not adjudicate international disputes. Id. Justice Brennan argued in his dissent in City Bank that Sabbatino held that the determination of the validity of a foreign act of state is sometimes a "political question" not cognizable in our courts. City Bank, 406 U.S. at 787-88 (Brennan, J., dissenting); but see L. TRIBE, AMERICAN CONSTITUTIONAL LAw 2-2 to 2-4 (1978) (noting judiciary must operate free of influence from executive or legislative branches). Other courts have applied the doctrine based on the purpose of the foreign sovereign's activity. See, e.g., Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 406 (9th Cir. 1983) (noting act of state doctrine protects sovereign against private citizen in suit for corrupt activities), cert. denied, 464 U.S. 1040 (1984); International Ass'n of Machinists v. OPEC, 649 F.2d 1354, 1361 (9th Cir. 1981) (holding act of state doctrine prevents court from enjoining alleged OPEC price fixing); MOL, Inc. v. Peoples Republic of Bangladesh, 572 F. Supp. 79, 84 (D. Or. 1983) (stating courts must examine purposes of governmental action in considering application of act of state doctrine), aff'd, 736 F.2d 1326 (9th Cir.), cert. denied, 469 U.S. 1037 (1984).

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cial decision contrary to executive foreign policy could interfere with foreign affairs.39 If a court is uncertain whether a decision will be inconsistent with United States foreign policy, it should abstain 40 from judgment.
Finally, in Banco Nacionalde Cuba v. Sabbatino,41 the Supreme Court

characterized the policy underlying the act of state doctrine as that of separation of powers. 42 In Sabbatino, Banco Nacional de Cuba, an agent of the Cuban Government, brought suit in the United States alleging that Sabbatino, an American commodities broker, converted property belonging to the Cuban Government. 43 Sabbatino argued that the property belonged to him and that the Cuban Government had illegally expropriated it.4 4 Moreover, he argued that the act of state doctrine should not protect the Cuban Government because the government's act of expropriating the property violated international law. 45 The majority rejected the district court's conclusion that a United States court could pass judgment on a foreign state's local act committed in violation of international law. 46 Balancing the interests of the parties, the role of the executive, and the role of the judiciary, the Court alluded to several factors to determine whether judicial review of the Cuban expropriation decree was proper. 47 Specifically, the Court focused on the degree of
39. See supra notes 1-3 and accompanying text (discussing judicial deference to executive). 40. See Allied Bank Int'l v. Banco Credito Agricola de Cartago, 566 F. Supp. 1440, 1444 (S.D.N.Y. 1983) (refusing to hear case because of possible determination that defendants would be required to make payments contrary to directives of their government), aff'd 733 F.2d 23 (2d Cir. 1984) (published in advance sheets only), withdrawn and vacated, 757 F.2d 516 (2d Cir.), cert. dismissed, 473 U.S. 934 (1985); Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 375 (2d Cir. 1954) (noting court in previous suit allowed defendant to invoke act of state doctrine because executive's position was unclear). 41. 376 U.S. 398 (1964). 42. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-37 (1964). 43. Id. at 406.
44. Id.

45. Id, at 420. 46. Id. at 439. 47. Id. at 423-24, 428-29. The court alluded to the following factors: 1. Possible impairment of the executive's conduct of foreign affairs. The Court implied this in its discussion of the separation of powers doctrine. Id. at 423-24. 2. The degree of consensus in international law on the act in question. Id. at 428. 3. The existence of standards in a treaty. Id. 4. Continued United States recognition of the foreign government. Id. 5. Sensitivity of the issue to national concerns. Id. 6. Provisions for prompt, adequate, and effective compensation. Id. at 429. See also First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 764-65 (1972) (plu-. rality opinion) (adopting Bernstein exception because purpose of act of state doctrine is to prevent executive embarrassment). But see, Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 698 (1976) (rejecting suggestion of State Department to abolish act of state doctrine). See infra note 57 and accompanying text (discussing legislative and judicial reaction to Sabbatino decision).

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consensus in international law as to the legality of the act in question, the current political status of the foreign sovereign, and the implications that adjudication would have on American foreign policy. 48 The Court noted that neither principles of international law nor the Constitution compelled the act of state doctrine. 49 The majority explained, however, that the doctrine had "constitutional underpinnings" requiring the judiciary to refrain from interfering with the executive's conduct of foreign relations. 50 The Court in Sabbatino, therefore, concluded that it could not review the Cuban Government's expropriation of a sugar contract, no matter how offensive the Cuban seizure was to United States public policy, because the executive branch traditionally handled such matters. 5 1
48. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423-24, 428-29 (1964). It is uncertain whether the test in Sabbatino applies outside of the expropriation area. See Note, Alien Tort Claims Act, 27 VA.J. INT'L L. 433, 438-39 (1987) (noting that it is unclear under what circumstances Sabbatino test applies); Note, Rehabilitationand Exoneration of the Act of State Doctrine, 12 N.Y.U.J. INT'L L. & POL'Y 599, 612 (1980) (arguing that Sabbatino'sthree factor test is "neat," but of "minimal utility"). Lower courts frequently have applied a Sabbatino type balancing test to dismiss a wide variety of foreign transactions, although none of these tests are widely accepted. See Compania de Gas de Nuevo Laredo v. Entex, 686 F.2d 322, 325 (5th Cir. 1982). The court in Compania suggested judicial consideration of four factors: (1) the degree of involvement of the foreign state; (2) whether the validity of foreign law is at issue; (3) whether the foreign state is a named defendant; (4) whether there is a demonstration of potential harm to American commerce. Id. (citing Industrial Investment Dev. Corp. v. Mitsui Co., 594 F.2d 48 (5th Cir. 1979), cert. denied, 445 U.S. 903 (1980)). See also Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 612 (9th Cir. 1976) (holding courts must weigh interests of and links to United States with nature and depth of foreign state's interest). Courts have used these balancing tests in numerous situations. See, e.g., Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 406 (9th Cir. 1983) (bribery), cert. denied, 464 U.S. 1040 (1984); DeRoburt v. Gannett Co., 733 F.2d 701, 703 (9th Cir. 1984) (libel), cert. denied, 469 U.S. 1159 (1985); MOL, Inc. v. Peoples Republic of Bangladesh, 572 F. Supp. 79, 83 (D. Or. 1983) (commercial exportation of monkeys), aff'd 736 F.2d 1326 (9th Cir.), cert. denied, 469 U.S. 1037 (1984). 49. Sabbatino, 376 U.S. at 423. 50. Id. The court argued that the basic relationship between the branches of government in a system of separation of powers compels the act of state doctrine. Id. The doctrine prevents the judicial branch from interfering with the executive's role in controlling foreign affairs. Id; see also Henkin, The ForeignAffairs Powersof the Federal Courts: Sabbatino, 64 COLUM. L. REv. 805, 809-13 (1964) (suggesting that Court in Sabbatinolooked to Constitution to provide federal basis for doctrine to circumvent states from invoking Erie doctrine and applying state laws to foreign sovereigns). 51. Sabbatino, 376 U.S. at 436. Congress disliked the Sabbatino decision because it permitted Fidel Castro to prevail in American courts against American victims. See R. FALK, THE AFrERMATH OF Sabbatino, 35-52 (1965) (describing congressional opinion of Sabbatino). In 1964, Congress passed the "Sabbatino Amendment" to the Foreign Assistance Act. Pub. L. No. 88-633, pt. III, 301(d)-(g), Oct. 7, 1964, 78 Stat. 1013 (codified as amended at 22 U.S.C. 2370(e)(2) (1982)). The amendment stated that the act of state doctrine should not bar courts from determining the legality of a foreign government's violation of international law. Id. The district court, on remand in Sabbatino, determined that Congress intended to apply the amendment retroactively, and declared that the Cuban expropriation was in violation of international law. Banco Nacional de Cuba v. Farr, 243 F. Supp. 957, 967 (S.D.N.Y. 1965).

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C. Exceptions to the Act of State Doctrine

Application of the act of state doctrine often leaves United States

plaintiffs with no recourse against a foreign government. 5 2 Courts,

therefore, have created five exceptions to the doctrine, in instances

5 when adjudication would not interfere with international comity. 3

First, both the Second Circuit and a plurality of the Supreme Court have articulated the Bernstein Exception, which states that adjudication of a foreign act of state is proper when the State Department expresses its approval. 54 Second, the Second and Fifth Circuits have adopted an exception to the act of state doctrine when a foreign official has engaged in activities that are illegal under applicable foreign law.5 5 Third, the Second Circuit has refused to recognize foreign acts of state affecting property within the United States, unless the act of state is consistent with United States law. 56 Fourth, the Second and Fourth Circuits have held that a ruler's act of violating his country's laws, for his own benefit, are private actions outside the scope of the act of state doctrine. 57 Finally, the Second Circuit has suggested that a court should honor a foreign government's attempt to waive the act of state doctrine. 58 These exceptions are described in detail below.
1. The Bernstein exception
59 the Second In Bernstein v. Amerikaansche Stoomvaart-Maatschappj,

Circuit formulated a major exception to the act of state doctrine. The court held that a judicial determination of a foreign act of state is proper when the State Department has announced that such judgment will not harm United States foreign relations. 60 In Bernstein, a
52. See Clayco Petroleum Corp. v. Ocddental Petroleum Corp., 712 F.2d 404, 409 (9th Cir. 1983) (barring plaintiff's claim involving foreign sovereign under act of state doctrine, thereby leaving plaintiff without impartial forum), cert. denied, 464 U.S. 1040 (1984); Hunt v. Mobil Oil Corp., 550 F.2d 68, 79 (2d Cir.) (leaving plaintiff without recourse because act of state doctrine precluded its claim against Libyan Government), cert. denied, 434 U.S. 984 (1977). 53. See infra notes 59-107 and accompanying text (explaining exceptions to act of state doctrine). 54. See infra notes 59-73 and accompanying text (describing Bernstein exception). 55. See infra notes 89-94 and accompanying text (examining Jimenez, Marcos I and Filartiga). 56. See infra notes 81-88 and accompanying text tstating property situs exception). 57. See infra notes 89-94 and accompanying text (explaining distinction between ruler's public and private acts). 58. See infra notes 95-107 and accompanying text (describing waiver exception). 59. 210 F.2d 375 (2d Cir. 1954). 60. Bernstein v. N.V. Amerikaansche Stoomvart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954). Some commentators argue that courts should yield to the executive branch in suits affecting foreign relations. See Note, AdjudicatingActs of State in Suits Against Foreign Sovereigns: A PoliticalQuestionAnalysis, 51 FORDHAm L. REv. 722, 730-32 (1983) (discussing Supreme

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Jewish plaintiff brought suit against a Dutch corporation, alleging that the corporation possessed property that the Nazi German Government had seized from him. 6 1 On a prior appeal, the court ruled that the act of state doctrine barred the plaintiff from asserting claims requiring the court to judge the acts of Nazi officials.6 2 After that decision, the Department of State issued a letter stating that the Department would not object to the court's invalidation of the former German Government's acts. 63 Based on this Bernstein letter, the Second Circuit permitted the lower court to judge the Nazi officials' actions. 64 The State Department did not issue another Bernstein letter for almost two decades. 65 Finally, in FirstNational City Bank v. Banco Nacional de Cuba,66 the State Department urged the Supreme Court to refuse to apply the act of state doctrine to bar a counterclaim against the Cuban Government. 6 7 The Department noted that foreign governments increasingly had expropriated property belonging to United States citizens. 68 Moreover, the Department added that when foreign governments brought suit to recover money United States financial institutions owed them, it would be unfair for United States courts to apply the doctrine to bar the institutions from counterclaiming for foreign expropriations. 69 Accordingly, application of the doctrine in these cases was unlikely to interfere with United 70 States foreign policy. The Supreme Court, without fully accepting the Bernstein excepCourt's application of Bernstein in City Bank); See also R. FALK, THE STATUS OF LAW IN INTERNATIONAL SociErY 426-47 (1970) (explaining that adjudication of foreign disputes by courts can jeopardize any ongoing negotiations between executive and foreign government). The contrary argument is that executive guidance is not dispositive because the act of state doctrine is a judicial doctrine for guidance of the courts. See Bayzler, supra note 7, at 337 n.61 (1986) (noting courts interpret extradition treaties even though doing so may interfere with executive's ability to conduct foreign policy); R. FALK, THE ROLE OF DOMESTIC COURTS IN INTERNATIONAL ORDER 10-11 (1964) (arguing judicial deference to executive branch should be based upon functional principles of allocation and not upon "ad hoc" subordination to executive policy). 61. Bernstein, 210 F.2d at 376. 62. Id. 63. Id. The letter from the State Department stated: "The policy of the Executive with respect to claims asserted in the United States ...as a result of Nazi persecution in Germany, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials." Id. 64. Id. at 377. 65. See Bayzler, supra note 7, at 134 (noting State Department has issued very few Bernstein letters). 66. 406 U.S. 759 (1972). 67. First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762 (1972). 68. Banco Nacional de Cuba v. First Nat'l City Bank, 442 F.2d 530, 537 (2d Cir. 1971), rev'd, 406 U.S. 759 (1972). 69. Id. 70. Id.

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tion, held that the act of state doctrine did not foreclose a decision on the merits. 7 1 Justice Rehnquist, writing for the three member plurality, noted that because the purpose of the doctrine was to avoid potential executive embarassment, the Court should defer to the executive's wishes and find the act of state doctrine inapplicable. 7 2 The Court was divided on this point, however, because although three Justices concurred in the result, the remaining six Justices did not expressly accept the Bernstein exception, and four 73 explicitly rejected it. 2. The commercial activity exception

Four years later, in Alfred Dunhill of London, Inc. v. Republic of Cuba,74 a plurality of the Supreme Court ignored the Bernstein exception, but articulated a commercial activity exception to the act of state doctrine. 75 In Dunhill, the Cuban Government repudiated the obligation of a Cuban company to return funds owed to the petitioner. 76 The Cuban Government claimed that the act of state doctrine barred the Court from judging the repudiation because it constituted an act of state. 7 7 The State Department urged the Court to overrule Sabbatino and abolish the act of state doctrine altogether. 78 The plurality in Dunhill noted that when a state enters the
71. City Bank, 406 U.S. at 760, 770, 773. FiveJustices agreed with this result but gave different reasons for not applying the doctrine. Id. 72. Id. at 768. 73. Id. at 760, 770, 773. Only ChiefJustice Burger and Justice White accepted Justice Rehnquist's proposition that courts should heed executive approval for waiver of the doctrine. Id. at 760. Justice Douglas relied on equitable principles articulated in National City Bank v. Republic of China, 348 U.S. 356, 365 (1955) (stressing consideration of fair dealing in application of foreign sovereign immunity defense). City Bank, 406 U.S. at 771. Justice Powell concurred in the Court's judgment, noting that cases should be presumed justiciable absent a demonstrated negative impact on foreign relations. Id. at 775-76. Some scholars argue that these three views are inconsistent. See Hardisty, Reflections on Stare Decdis, 55 IND. LJ.41, 52-57 (1979) (arguing Justices' views on application of act of state doctrine cannot be reconciled). Some courts have, therefore, been reluctant to apply the analysis in City Bank. See Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 884 n. 11(2d Cir. 1981) (refusing to apply analysis in City Bank). Justice Brennan, joined in his dissent in City Bank, by Justices Stewart, Marshall and Blackmun, refused to recognize the Bernstein exception. First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 777-78 (1972) (Brennan, J., dissenting) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964)). Justice Brennan noted that it is questionable whether the Court's decision to adjudicate a dispute should depend upon the executive's "educated guess." Id. He argued that, if the executive's position is wrong, adjudication will hinder United States foreign relations. Id. 74. 425 U.S. 682 (1976). 75. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 706 (1976). 76. Id. at 685. 77. Id. 78. Id. at 685-86. Justice Marshall pointed out in his dissent that the executive branch argued the opposite when Sabbatino was before the Court. Id. at 725 n.10 (Marshall, J., dissenting). The text of the State Department's letters is reproduced in the Sabbatino circuit court opinion. See Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 858 (2d Cir. 1962),

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marketplace seeking customers, it divests itself of its sovereignty, and takes on the character of a commercial trader. 79 Accordingly, while the Court retained the act of state doctrine, it found the doctrine inapplicable because the Cuban Government's repudiation of 80 the commercial debts constituted a private action. 3. United States property situs exception

Courts have also refused to apply the act of state doctrine to shield a foreign act of state affecting property within the United States81 unless such act is consistent with United States law and policy.8 2 In Republic of Iraq v. First National City Bank,8 3 the Republic of Iraq issued a decree to confiscate the assets of its deposed monarch, King Faisal II, whose assets were already located in the United States.8 4 The Second Circuit agreed that confiscatory decrees are the very archetype of an act of state. The court then explained, however, that it would only apply the act of state doctrine to public acts of a sovereign within the sovereign's own territory.8 5 When an act of state affects property within the United States, the foreign sovereign will have a diminished expectation of immunity, such that adjudication will be unlikely to interfere with United States foreign
rev'd, 376 U.S. 398 (1964). While the majority of the Supreme Court in Sabbatino never acknowledged that the Court was following the executive branch's recommendation, its formulation of the act of state doctrine was identical to the State Department's viewpoint as expressed in the Solicitor General's brief. See Brief for the United States as Amicus Curiae at 18, Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962) (No. 62-27268). 79. Dunhill, 425 U.S. at 696 (citing Ohio v. Helvering, 292 U.S. 360, 369 (1934)). 80. Id. at 720. 81. See, e.g., Tabacalera Severiano Jorge, S.A. v. Standard Cigar Co., 392 F.2d 706, 71516 (5th Cir.) (stating court should only recognize foreign acts of state insofar as they are able to come to complete fruition within the dominion of acting state), cert. denied, 393 U.S. 924 (1968); United Bank Ltd. v. Cosmic Int'l, Inc., 542 F.2d 868, 873-74 (1976) (refusing to give effect to Pakistani expropriation order because situs of debts was in New York); Menendez v. Saks & Co., 485 F.2d 1355, 1364-65 (2d Cir. 1973) (stating debt is not located within foreign state unless that state has personal jurisdiction over debtor), cert. denied, 425 U.S. 991 (1976); Maltina Corp. v. Cawy Bottling Co., 462 F.2d 1021, 1024 (5th Cir.) (noting that act which requires participation and acquiescence of foreign state to be effective is not act within territory of acting nation), cert. denied, 409 U.S. 1060 (1972); Weston Banking Corp. v. Turkiye Garanti Bankasi, 57 N.Y.2d 315, 324, 442 N.E.2d 1195, 1199, 456 N.Y.S.2d 684, 688 (1982) (explaining debt not located within foreign state merely because suit could have been brought in Turkey instead of United States); Manas y Pineiro v. Chase Manhattan Bank, N.A., 106 Misc.2d 660,434 N.Y.S.2d 868, 872 (Sup. Ct. 1980) (holding debt located in foreign country when both property and persons were inside foreign country at time of seizure). 82. See Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51-52 (2d Cir. 1965) (refusing to enforce Iraqi confiscatory decree in United States because decree violated bill of attainder clause and fifth and fourteenth amendment due process rights), cert. denied, 382 U.S. 1027 (1966); cf Letelier v. Republic of Chile, 488 F. Supp. 665, 673-74 (1980) (refusing to invoke sovereign immunity doctrine because it would violate principles of Federal Torts Claim Act). 83. 353 F.2d 47 (2d Cir. 1965).
84. Republic of Iraq, 353 F.2d at 47.

85. Id. at 50.

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relations. 86 Noting that King Faisal's property was located in the United States at the time Iraq passed the decree, the court concluded that the ordinance to confiscate assets in the United States could not be fully executed within Iraq, because it would be ineffective unless United States courts enforced it.87 Accordingly, the court, finding the act of state doctrine inapplicable, refused to enforce the Iraqi decree 88 because it was shocking to our sense of justice. 4. Private act exception Courts have also held that the act of state doctrine does not insulate private criminal acts of foreign officials. 89 For example, in
Jimenez v. Aristeguieta,90 the Venezuelan Government charged that

Jimenez, then Venezuela's chief executive, engaged in financial crimes including securing kickbacks on government contracts and expropriating property by official decree. 91 The United States Court of Appeals for the Fifth Circuit noted thatJimenez, although characterized as a dictator, was only a public officer and not himself the sovereign. 92 Moreover, the court said that the act of state doctrine applies only when sovereign officials act in their official capacity. 9 3 Accordingly, the court held thatJimenez's acts were common crimes done for his own benefit, in violation of his position, and 94 therefore adjudication of their validity was proper. 5. The waiver exception Courts have also explained that application of the act of state doc86. Id. at 51. 87. Id. The court noted that courts have termed confiscation of assets as contrary to public policy. Id. (citing Zwack v. Kraus Bros. & Co., 237 F.2d 255, 259 (2d Cir. 1956); Plesch v. Banque Nationale de la Republique d'Haiti, 273 A.D. 224, 77 N.Y.S.2d 43 (1st Dept.), aff'd, 298 N.Y. 573, 81 N.E.2d 106 (1948)). 88. Id. at 51-52. 89. See, e.g., Republic of Philippines v. Marcos, 806 F.2d 344, 358-59 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987) (stating that act of state doctrine does not insulate dictator's illegal activities without proof that such actions were official acts); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980) (noting act of state doctrine inapplicable to actions of police official in violation of alien tort statute); Sharon v. Time, Inc., 599 F. Supp. 538, 544 (S.D.N.Y. 1984) (declaring actions of state official outside scope of his authority are not acts of state). 90. 311 F.2d 547 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963). 91. Jimenez v. Aristequieta, 311 F.2d 547, 552 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963). 92. Id. at 557. 93. Id. (citing Bernstein v. Van Heyghen Freres, S.A., 163 F.2d 246, 249 (2d Cir.), cert. denied, 332 U.S. 772 (1947); Banco de Espana v. Federal Reserve Bank, 114 F.2d 438, 444 (2d Cir. 1940)). The court noted that Jimenez engaged in such illegal activities for his "private financial benefit." Id. Because such acts were done in violation of his position, they were as far from being sovereign acts as would be the act of rape. Id. at 558. 94. Id. at 557-58.

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trine when a foreign government requests that it be waived will interfere with international comity. 9 5 In Republic of Philippines v. Marcos96 (Marcos I), the Philippine Government requested that the Second Circuit grant a preliminary injunction to prevent the transfer or encumbrance of property in the State of New York that Marcos had bought with funds he allegedly stole from the Philippine Government, pending a decision on the merits. 97 Marcos claimed that he acted in his official capacity and, therefore, the act of state doctrine precluded the court from issuing the injunction. 98 The Second Circuit held that the doctrine did not apply because Marcos had not met his strict burden of demonstrating that he acted within his official capacity.9 9 The court also suggested two additional reasons why the act of state doctrine was inapplicable in this case. First, the court noted that because Marcos was no longer in power, adjudication of the legality of his acts was unlikely to interfere with the executive's conduct of foreign policy. 10 0 Second, the court stated that because the act of state doctrine reflects respect for the sovereignty of foreign nations, a court is less justified in applying the doctrine when a foreign state asks United States courts to examine its action. 10 ' The United States Court of Appeals for the Fourth Circuit has borrowed the Second Circuit's dictum in a case involving head of state immunity, a doctrine closely related to the act of state doctrine. The doctrine of head of state immunity maintains that a head of state and his immediate family are immune from the jurisdiction of a
95. See infra notes 96-107 and accompanying text (explaining that court's failure to honor government's request for waiver of former ruler's immunity will interfere with international comity). 96. 806 F.2d 344 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987). 97. Republic of Philippines v. Marcos, 806 F.2d 344, 348-49 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987). A party requesting a preliminary injunction must demonstrate probable success on the merits and irreparable injury if the injunction is not granted. See Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201-02 (9th Cir. 1980) (stating burden of proof for preliminary injunction). 98. Id. at 357. 99. Id. at 359. 100. Marcos 1, 806 F.2d at 359. The court recognized that this case was distinguishable from its earlier decisions barring suit against a foreign sovereign. See Bernstein v. Van Hyghen Freres, S.A., 163 F.2d 246 (2d Cir.), cert. denied, 332 U.S. 772 (1947); Banco de Espana v. Federal Reserve Bank, 114 F.2d 438 (2d Cir. 1940). Those cases relied on the principal of sovereign immunity rather than the act of state doctrine. Marcos I, 806 F.2d at 359. Moreover, the Court in Sabbatino, based on the separation of powers rationale, established that the balance of considerations may shift against a ruler of a former government because the political interest of the United States would be lessened. Id. 101. Cf In re Grand Jury Proceedings John Doe No. 700, 817 F.2d 1108, 1111 (4th Cir.) (noting failure to honor government's waiver of former dictator's head of state immunity would undermine international comity), cert. deniedsub nom. Marcos v. United States, 108 S. Ct. 212 (1987).

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foreign state's courts for actions engaged in while in power.10 2 In In reJohn Doe No. 700,103 a federal grand jury issued subpoenas commanding the Marcoses to testify regarding possible corruption in American arms contracts with the Philippines.10 4 In response to the Marcoses' plea for head of state immunity, the Philippine Government issued a statement attempting to waive the Marcoses' immunity.10 5 The court reasoned that failure to honor this waiver would offend the Philippine Government, thereby undermining the doc06 Accordingly, trine's purpose of promoting international comity.1 the Fourth Circuit gave full effect to the waiver of the doctrine as a 07 demonstration of respect for Philippine sovereignty.' III.
REPUBLIC OF PHILIPPINES V. MARCOS (MARCOS

II)

Marcos 11 illustrates a more recent situation when the current Philippine Government sought to waive the act of state doctrine in order to prosecute its former ruler for his alleged crimes while in office. On February 7, 1986, the Philippine Government held a special presidential election. 10 8 The Philippine people rejected an official tabulation showing an overwhelming victory for Ferdinand Marcos.' 0 9 Corazon Aquino, the leader of the party opposing Marcos, accused the incumbent government of fraud." 10 The Marcos Government sent troops to attack those supporting Aquino, and Aquino's supporters successfully retaliated.' 1 Realizing that his regime was at an end, Marcos and his wife Imelda fled to the United States." 2 Almost immediately the United States Government recognized his successor, President Corazon
102. See Note, Resolving the Confusion of Head of State Immunity: The Divine Rights of Kings, 86 COLUM. L. REv. 169, 182 (1986) (explaining doctrine of head of state immunity). 103. 817 F.2d 1108 (9th Cir. 1987), cert. denied, 108 S. Ct. 212 (1987). 104. John Doe, 817 F.2d at 1109. 105. Id. at 1110. 106. Id. The Marcoses contended that the court, by honoring the Philippine Government's waiver request, would establish an uncivilized system which would permit political enemies to expunge international legal protections from their adversaries, once they have been removed from office. Id. at 1111. The court conceded that the system may degrade ex-rulers, who happen to fall out of favor with their political successors. Id. The court, however, argued that it would be worse to allow ex-rulers to "mock the existing government by claiming immunity in the name of that government." Id. 107. Id. 108. Republic of Philippines v. Marcos, 818 F.2d 1473, 1475 (9th Cir.), reh'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc). 109. Id. 110. Id. 111. Id. 112. Id. Since 1979, General Anastasio Somoza of Nicaragua, the Shah of Iran, and President Jean-Claude Duvalier of Haiti have also been forced to flee from their countries. See

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Aquino, as the legitimate leader of the Philippines.' 1 3 Assets alleg-

were later discovered in the United edly belonging to the Marcoses 1 14

States and around the world. The Philippine Government brought suit in the United States Dis-

trict Court for the Central District of California,"15 alleging that,

while Marcos was in power, he converted approximately $1.5 billion in assets belonging to the Philippine Government by accepting payments, kickbacks, and interests in business ventures in exchange for governmental favors. 116 The Philippine Government, noting the discrepancy between the income Marcos reported in the last two decades, and his alleged worth of $1.5 billion, relied on a net worth analysis 17 to assert that Marcos had to have acquired virtually all of his wealth through racketeering activities. 1 1 8 Accordingly, the sovereign argued that it was unnecessary for it to trace each particular
Comment, Marcos Mania: The Crusade to Return Marcos' Billions to the Philippines Through the Federal Courts, 18 RUTGERS LJ.217, 217 n.1 (1986) (listing deposed rulers). Because the United States does not have an extradition treaty with the Philippines, Marcos is protected from extradition for prosecution. Id. at 218 n.8. 113. Id. (citing Marcos Flees and Is Taken to Guam; U.S. Recognizes Aquino as President, N.Y. Times, Feb. 26, 1986, at Al, col. 3 (noting United States recognized Aquino government same day Marcos fled Philippines)). 114. Marcos II, 818 F.2d at 1474. The Philippine Government brought suits against Marcos to recover assets in Switzerland, state and federal courts in California, and federal courts in New York, NewJersey, and Texas. Id. at 1475. See also FilipinosFile $22.6 Billion Suit

Against Marcoses, N.Y. Times, July 17, 1987, at Al, col. 3 (describing suit against Marcos to recover property in several countries). 115. Marcos I, 818 F.2d at 1475. The district court opinion is unreported. The Republic's complaint named Ferdinand and Imelda Marcos, Gregorio Araneta, Ramon Azurin, Antonio Floirendo, Diosado Ordonez, Anchor Holdings, N.V., Al Dejebal Corporation (collectively the "minor defendants"), and Lloyd's Bank of California. Id. at 1476-77. The government's complaint stated eleven claims for relief. Id. at 1477. These claims included eight pendent claims and three claims under the federal Racketeer Influenced and Corrupt Organization Statute, 18 U.S.C. 1961-1968 (1982) (RICO). Marcos II, 818 F.2d at 1477. The pleading alleged the following RICO violations. First, Mr. Marcos and the minor defendants conducted a RICO enterprise, through a pattern of racketeering acts committed in the United States, in violation of 18 U.S.C. 1962(c) (1982). Brief of Plaintiff-Appellee at 7, Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir.) (No. 86-6091), reh'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc) [hereinafter Brief of Plaintiff]. Second, they invested the illegal proceeds in various "enterprises" in California, in violation of 18 U.S.C. 1962(a) (1982). Brief of Plaintiff, supra, at 7. Third, they engaged in a single nationwide conspiracy to conduct the RICO enterprise and invest the funds in violation of 18 U.S.C. 1962(d) (1982). Brief of Plaintiff, supra, at 7. The eight pendent claims were claims for conversion, fraud and deceit, constructive fraud, constructive trust, breach of implied contract (against Mr. Marcos only), quiet title, accounting, and subrogation. Id. at 8. 116. Marcos II, 818 F.2d at 1480-81. 117. Id. at 1480. The complaint charged that during Mr. Marcos's twenty year reign as President of the Philippines, he and Mrs. Marcos filed tax returns demonstrating their joint after-tax income to be approximately $337,429. Brief of Plaintiff, supra note 115, at 6. During these same years, however, they accumulated over $1.55 billion in assets. Id.; see also Investigation] (terming Marcos Government as "kleptocracy" because it existed primarily to "systematically loot and plunder the wealth of the nation") (statement of Rep. Solarz). 118. Marcos H, 818 F.2d at 1480.
Affairs of the House tion of PhiL Inv. in the United States, Before the Subcomm. on Asian and Pacific Comm. on ForeignAffairs, 99th Cong., 1st & 2d Sess. 479 (1985-86) [hereinafter House Investiga-

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racketeering activity to the acquisition of specific property."19 The Philippine Government claimed, therefore, that it was entitled to an world that Marcos alleginjunction to freeze property around the20 assets.' edly bought with the Philippines' Determining that the Republic of Philippines had a substantial likelihood of prevailing on the merits, the district court issued a preliminary injunction to prevent Marcos from transferring the disputed property and irreparably harming the Philippine Government.' 2 ' The court held that the Philippine Government's allegations that Marcos had violated the Federal Racketeer Influenced and Corrupt Organizations Act ("RICO") provided federal jurisdiction, while the pendent causes of action entitled the Republic to an injunction. 122 The district court, however, did not consider whether the act of state doctrine barred adjudication of the legality of Marcos' actions.1 23
119. Id.
120. Id. at 1475. 121. Id. at 1477. The district court first determined that it had federal jurisdiction under RICO. Id. Second, the majority determined that the sovereign had a substantial likelihood of prevailing on the merits. Id. Third, the court granted an injunction based on the pendent claims. Id. The court noted that Marcos had a propensity to move his assets, and if Marcos transferred the property, the move would irreparably harm the Philippines. Id. at 1476-77. Less than two weeks after Marcos fled from the Philippines, he transferred the Beverly Hills property to a Cayman Islands corporation to prevent the Philippines from recovering the property. Complaint of Plaintiff-Appellee at 21, Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir.) (No. 86-6091), reh'ggranted,832 F.2d 1110 (9th Cir. 1987) (en banc). Moreover, both the United States District Court for the Southern District of New York and the Los Angeles Superior Court granted a preliminary injunction because of evidence of Marcos' intent to conceal assets. Brief of Plaintiff, supra note 115, at 58. The courts noted that Marcos could easily sell the property and deliver the funds out of the country, beyond the Philippines' reach. Id. at 58-59. After the Ninth Circuit decided Marcos II, a federal grand jury in New York indicted Marcos, his wife Imelda, Saudi Arabian Financier Adnan Khashoggi, and seven others on charges that they used funds Marcos embezzled from the Philippines to secretly buy real estate in Manhattan. See Marcos, Wife Indicted on U.S. Racketeering Charges; Khashoggi, Calif.Bank also Cited, L.A. Times, Oct. 21, 1988, at 1, col. 6 (noting that Marcos was indicted on October 21, 1988). The indictment alleges that Khashoggi and the other co-defendents assisted the Marcoses in concealing the former Philippine president's ownership of the property. Id. Specifically, the indictment accuses Marcos of attempting to illegally backdate documents to give the appearance that he sold four New York office buildings worth approximately $300 million to Khashoggi before Marcos left office, in order to evade a federal court order preventing Marcos from transferring his assets. See id. (stating that Marcos' buildings were worth $300 million); Marcus, Marcos Case IllustratesLonger Reach of U.S. Law; NationalBoundariesLess of an Obstacle, Wash. Post, Oct. 26, 1988, at A4, col. 5 (describing indictment of Marcos). 122. Marcos II, 818 F.2d at 1477. 123. If the court determined that the doctrine applied, it would be impossible for the Philippine Government to demonstrate that Marcos violated Philippine law and, therefore, the Philippine Government would be unlikely to succeed on the merits. Id. at 1477, 1480-81. The Republic argued that Marcos should not have been allowed to plead act of state protection at the appellate level because he did not raise the defense in the district court. Brief of Plaintiff, supra note 115, at 74.

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A.

The Ninth Circuit's Opinion

In a two-one decision, the United States Court of Appeals for the Ninth Circuit reversed the district court. 124 The court, after agreeing that RICO provided subject matter jurisdiction, 125 held that the act of state doctrine barred the Philippine Government's request for 1 26 adjudication of most of former President Marcos' alleged actions. Accordingly, the plaintiff's net worth theory would fail, rendering the Republic unlikely to prevail at trial, and the preliminary injunc127 tion improper. The court articulated two reasons in finding the act of state doctrine applicable. First, the court stated that a ruler's traditional governmental actions are sufficiently public to invoke the act of state doctrine.128 Second, the court noted that, to avoid interfering with to invoke the act of foreign relations, it must permit a former ruler129 state doctrine against the current government.
1. Traditionalgovernmental activities are public
30 The court, noting that the doctrine applied to only official acts,' first considered whether Marcos' illegal activities were sovereign acts of the Philippines.' 3 ' The court stated that Marcos' expropriations of property and creation of public monopolies were govern32 mental acts and, therefore, official acts of the Philippines. Because Marcos used his presidential authority to accept bribes and kickbacks, such actions were also sovereign acts of the Philippines, even if illegal under Philippine law.' 3 3 Moreover, the court stated
124. Marcos I, 818 F.2d at 1489. Judge Kozinski wrote the majority opinion, while Judge Nelson dissented. Id. at 1490-1502. 125. The court noted that jurisdictional claims were broadly construed at the complaint stage. Id. at 1478 (citing Keniston v. Roberts, 717 F.2d 1295, 1298 (9th Cir. 1983)). It noted that a plaintiff's claim must fulfill two criteria. Id. (citing Keniston, 717 F.2d at 1298). The claim must claim a right to recover under United States laws, and must not be "wholly insubstantial and frivolous." Id. (citing Keniston, 717 F.2d at 1298). 126. Id. at 1489. 127. Id. at 1490. The Ninth Circuit requires a party requesting a preliminary injunction to demonstrate "probable success" on the merits and irreparable injury if the court does not grant the injunction. See Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980) (stating test for injunctive relief). 128. Marcos II, 818 F.2d at 1485-89. 129. Id. at 1487. 130. Id. at 1485 (citing DeRoburt v. Gannett Co., 733 F.2d 701 (9th Cir. 1984), cert. denied, 469 U.S. 1159 (1985)). 131. Id. at 1481-85. 132. Id. at 1481 (construing Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987)). The majority ignored the Second Circuit's holding that Marcos did not sustain his burden of proof that his acts were public. See Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987). 133. Marcos 11, 818 F.2d at 1481. The Ninth Circuit distinguished Marcos' actions from those he might have engaged in as a private citizen. Id. at 1485 (citing Alfred Dunhill of

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that it was irrelevant whether Philippine law authorized Marcos' acts because courts may not question the integrity of foreign governmental acts.' 3 4 Courts would weaken the act of state doctrine by permitting parties to attack the motives of officials and question the 13 5 validity of their official acts. 2. Adjudication will interfere with foreign relations The second issue that the court addressed was whether a former ruler may invoke the act of state doctrine as a defense to claims the country he formerly ruled brought against him.1 36 Having found that Marcos' acts were public, the court concluded that Marcos could invoke the act of state doctrine, because a United States judicial pronouncement of the legality of his actions could impair United States relations with the Philippines.1 3 7 The court conceded that there was less of a possibility that its pronouncements would 38 impair relations with a government who requested adjudication.1 The majority noted, however, that just as the position of the executive branch is not dispositive, i3 9 the pronouncement of a foreign sovereign with a stake in the litigation could not control.' 40 Embarrassment of United States relations with a foreign sovereign is only one rationale underlying the act of state doctrine.' 4 ' It was also
London, Inc. v. Republic of Cuba, 425 U.S. 682, 693-95 (1976); West v. Multibanco Comermex, S.A., 807 F.2d 820, 828 (9th Cir. 1987); RESTATEMENT (SECOND) OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES 469, n.3 (Tent. Draft No. 7 (1986)). The court noted that if Marcos robbed the treasury at gunpoint, it would be a private act. Id. at 1484. 134. Id. at 1484-85. The court noted that the governmental acts of a country's chief executive reflect complex political and policy choices. Id. at 1485. That there may have been improper motives underlying a particular action does not make the action less entitled to respect from other governments. Id. (construing Clayco Petrol. Corp. v. Occidental Petrol.

Corp., 712 F.2d 404, 407 (9th Cir. 1983)).

135. Id. at 1485. The court also noted that because the act of state doctrine prohibits inquiry into the legality of governmental acts, a theory which would only hold an action to be official if it were legal, would undermine the act of state doctrine. Id. at 1483. 136. Id. at 1485-89. 137. Id. at 1485. 138. Id. at 1486. See also In re GrandJury Proceedings, John Doe No. 700, 817 F.2d 1108, 1111 (4th Cir.) (noting failure to honor Philippine Government's waiver of Marcos' head of state immunity would undermine international comity), cert. denied sub noma.Marcos v. United States, 108 S. Ct. 212 (1987); Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986) (holding former head of state had no act of state immunity against own government), cert. denied, 107 S. Ct. 2178 (1987); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (arguing current government's acquiescence to suit and former government's actions lessens need for act of state doctrine). 139. Marcos II, 818 F.2d at 1485 (citing First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762 (1964)). 140. Id. at 1486 (citing Banco de Espana v. Federal Reserve Bank, 114 F.2d 438, 444 (2d

Cir. 1972) (defining "governmental act" as step taken by person capable of exercising sovereign authority)). 141. Id. (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-37 (1964)).

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conceivable that Marcos would regain power in the Philippines. 142 In that situation, the court's willingness to consider whether Marcos had committed illegal acts would adversely affect relations with the Philippines. 143 Alternatively, if the court exonerated Marcos, friction would result between the United States and the current Philippine Government. 44 Accordingly, the court would not adjudicate such controversial
matters, absent express encouragement from the executive 45 The Ninth Circuit branch.' also stated that the Second Circuit's assertion in Marcos I that the executive branch had approved of such

a determination was simply too nebulous to permit sweeping inferences about the executive branch's position.' 46 Moreover, the court found the Second Circuit case materially different from the instant case.147
142. Id. at 1485. The court noted that only four years ago, Mr. Marcos was in power and Mrs. Aquino was in exile in the United States. Id. See, e.g., Woman of the Year, Time, Jan. 5, 1987 at 18-33 (declaring Corazon Aquino "Woman of the Year" for leading "fairy-tale revolution"); Wall St. J., Dec. 29, 1986, at 1, col. 3 (noting Marcos loyalist staged protest to reject Aquino); U.S. FoilsMarcos in Plan to Return For Coup Attempt, N.Y. Times,Jan. 30, 1987, at Al, col. I (noting Philippine army attempted coup). 143. Marcos II, 818 F.2d at 1485. 144. Id. at 1487-88. The question.of whether Marcos properly invoked martial law, or whether he exercised it properly is of considerable importance to the Philippine Government and its people. Id. at 1488. The issue of Marcos' invocation of presidential immunity under the Philippine Constitution is also pertinent. Id. Article VII, Section 17 of the Philippine Constitution provides: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure." REPuBLIc OF PHILIPPINES CONsT. art. VII, 17. The court stated that if it decided the latter question, it would be as if the Supreme Court of the Philippines decided Nixon v. Fitzgerald. Marcos I, 818 F.2d at 1488 (citing Nixon v. Fitzgerald, 457 U.S. 731 (1982) (defining immunity of American presidents)). Such a determination "if wrongly made" would likely offend the Philippine Government. Id. at 1487 (citing Republic of Philippines v. Marcos, 806 F.2d 344, 354 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987)). In Nixon v. Fitzgerald, the Supreme Court determined the potential scope of civil damages immunity afforded a former United States president for his actions while in office. Nixon v. Fitzgerald, 457 U.S. 731, 755-58 (1982). The facts of Nixon revolve around President Nixon's failure to reinstate a civilian Air Force management analyst who testified before a congressional subcommittee that a transport airplane was overbudgeted. Id. at 733-39. The management analyst sought civil damages against Nixon, claiming that Nixon's refusal to reinstate him was in retaliation for his testimony. See Ricigliano, Remedies - Immunity - PresidentAbsolutely Immune from Civil Damages Liability For Official Acts - Nixon v. Fitzgerald, 102 S. Ct. 2690 (1982); Presidential Aides Entitledto QualifiedImmunityfrom Civil Damages Liabilityfor OfficialActs Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982), 13 SxroN HALL 374, 374-75 (1983). The court in Marcos II failed to acknowledge that the Philippine Government requested adjudication in Marcos II, whereas the United States did not request that the Philippine courts adjudicate Nixon. Moreover, the United States has an interest in Marcos 1I because Marcos has been granted United States immunity, and he may have violated RICO. 145. Marcos II, 818 F.2d at 1486. 146. Id. at 1487. The court noted that the statement the Second Circuit relied upon was addressed to an unrelated case before the Court of International Trade. Id. Moreover, the Ninth Circuit decided that the statement was ambiguous. Id. 147. Id. at 1488 (citing Republic of Philippines v. Marcos, 806 F.2d 344, 354 (2d Cir. 1986)). The court argued that the Second Circuit asserted jurisdiction over the Philippines'

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In her dissent, Judge Nelson disputed the court's holding that the act of state doctrine barred the Philippines' suit against Marcos. She urged that the act of state doctrine should not protect Marcos' acts because those acts were private and unofficial, rather than sovereign acts of the government.1 48 Moreover, Marcos' self-serving activities should not be characterized as public simply because they were tied 49 to his governmental actions.' Judge Nelson was most concerned with the majority's assertion that invocation of the act of state doctrine was necessary to prevent the litigation from interfering with the United States executive branch.' 50 She noted that the doctrine reflects respect for the sovereignty of foreign states, and consequently the justification for its application is weak in this case because the Philippine Government had requested adjudication.' 5 ' In addition, the executive branch had clearly approved of such a determination.1 52 Moreover, she noted that the majority's holding interfered with international comity and separation of powers because it contravened the wishes of 55 both the Philippine Government and the executive branch.

III. A

CRrrIQUE OF MARCOS II

The Ninth Circuit's application of the act of state doctrine in Marcos II is inconsistent with precedent and defies the basic policies underlying the doctrine.' 5 4 First, the court erroneously concluded that Marcos' illegal governmental activities were public and therefore beyond United States adjudication.' 55 Second, assuming, arguendo that Marcos' illegal actions were public, the act of state doctrine would still not protect them because his actions were not fully execlaim to freeze Marcos' property subject to future process in the Philippines. Id. at 1487-88. The Philippine courts would decide whether Marcos' conduct constituted theft under Philippine law. Id. (citing Marcos I, 806 F.2d at 361). Moreover, the court stated that the claims covered only specific assets in New York. Id. In Marcos I, the Philippine Government did not ask the district court to determine the legality of Marcos' actions. Id. at 1488 (citing Marcos I, 806 F.2d at 361). The Philippine courts were to adjudicate those matters. Id. 148. Id. at 1492-94 (Nelson, J., dissenting). Judge Nelson agreed with the majority that the district court had jurisdiction under RICO. Id. 149. Id. (Nelson, J., dissenting). 150. Id. at 1495 (Nelson, J., dissenting). 151. Id. at 1495-96 (Nelson, J., dissenting). 152. Id. (Nelson, J., dissenting). 153. Id. (Nelson, J., dissenting). 154. See infra notes 155-202 and accompanying text (critiquing circuit court's decision). 155. See infra notes 158-77 and accompanying text (explaining distinction between official's public and private acts).

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cuted within the Philippines.1 56 Third, the court's decision not to adjudicate Marcos' actions, contrary to the express wishes of the executive branches of both the United States and the Philippines, will ultimately only cause friction between the two countries, thereby vi15 7 olating the purpose of the doctrine. A. Illegal Governmental Activities are PrivateActions

The Ninth Circuit holding that a ruler's actions are sovereign activities when accomplished through governmental acts erroneously concluded that the act of state doctrine barred consideration of the legality of Marcos' actions.1 58 An analysis of the court's holding exposes two weaknesses. First, the court's approach blurs the distinction between the official and unofficial character of Marcos' acts.' 5 9 Second, the majority ignored the well established principle that the burden of proving that an act is official rests with the party seeking 160 the protection of the act of state doctrine. The dissent correctly noted that the majority has placed actions of foreign dictators above judicial review. 16 1 A dictator is only a representative of his nation, and not the sovereign itself.'6 2 United States courts have long recognized the distinction between a foreign official's public and private acts.' 6 3 The act of state doctrine only
156. See infra notes 178-86 and accompanying text (stating that act of state doctrine only protects sovereign official's actions that were fully executed within sovereign's territory). 157. See infra notes 187-202 and accompanying text (arguing that court should defer to executive pronouncements on matters of foreign affairs). 158. See Republic of Philippines v. Marcos, 818 F.2d 1473, 1481 (9th Cir.) (Nelson, J., dissenting), reh'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc). 159. Id. at 1493 (Nelson, J., dissenting). Courts have long recognized the distinction between a ruler's public and private acts. See infra notes 162-73 and accompanying text (discussing and citing cases that clarify this distinction). The Philippine Constitution distinguishes between a president's official and unofficial actions. REPUBLIC OF PHILIPPINES CONsT. art. VII, 17. The Constitution provides the President with complete immunity from suit during his presidential term. Id. It does not allow him immunity for private actions once he leaves office. Id. 160. Marcos I1, 818 F.2d at 1495. See, e.g., Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987) (stating deposed ruler failed to meet burden of proving that his acts were official); Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 (1976) (noting burden of proof on party asserting act of state defense); Sharon v. Time, Inc., 599 F. Supp. 538, 544 (S.D.N.Y. 1984)(holding appellant bears strict burden of proving his acts were official). 161. Marcos II, 818 F.2d at 1492-94 (Nelson, J., dissenting). 162. Jimenez v. Aristequieta, 311 F.2d 547, 557-58 (5th Cir. 1962) (stating that dictator is only chief executive of nation, not sovereign itself), cert. denied, 373 U.S. 914 (1963). 163. See, e.g., Marcos I, 806 F.2d at 359 (holding doctrine inapplicable because Marcos failed to prove that his actions were public);Jimenez, 311 F.2d at 557-58 (noting that dictator's illegal actions were private actions outside protection of act of state doctrine); Sharon v. Time, Inc. 599 F. Supp. 538, 546 (S.D.N.Y. 1984) (noting that government official seeking act of state immunity bears strict burden of proving actions were within official capacity); but see Clayco Petrol. Corp. v. Occidental Petrol. Corp., 712 F.2d 404, 407 (9th Cir.) (rejecting bribery exception to act of state doctrine because suit would require determination of validity of

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shields official actions.1 6 4 An official's unauthorized actions, contrary to the state's public interests, are not acts of state. 16 5 For example, inJimenez v. Aristequieta,' 6 6 the Fifth Circuit recognized that a dictator is capable of engaging in private, unofficial acts. 16 7 The court inJimenez held that former Venezuelan President Jimenez' crimes were acts committed for his private financial benefit, and were therefore not sovereign acts.16 8 Marcos' actions are indistinguishable from thoseJimenez committed.' 6 9 Consequently, Marcos' illegal activities are severable from the public, governmen170 tal acts that he performed.

Moreover, a ruler's illegal activities are not public actions just because they are tied to governmental activities.' 7 ' By expropriating

property through official decree and receiving kickbacks and commissions on governmental contracts, Marcos violated Philippine law

and acted in furtherance of his own selfish interests. 72 His crimes should not be deemed public merely because he used his govern73 mental authority to commit them.'

The dissent correctly explained that the majority, by insulating

Marcos' actions from judicial scrutiny, ignored the well-established

rule that a party pleading the act of state doctrine bears the burden
oil concession), cert. denied, 464 U.S. 1040 (1983). The Philippine Government argued, however, that Clayco is distinguishable from Marcos 1I because in Clayco a private party, and not the government, sought to have the act declared invalid. Brief of Plaintiff, supra note 115, at 78 n.44. 164. Hunt v. Mobil Oil Corp., 550 F.2d 68, 73 (2d Cir.), cert. denied, 434 U.S. 984 (1977). 165. Filartiga v. Pena-Irala, 630 F.2d 876, 889-90 (2d Cir. 1987); Sharon v. Time, Inc., 599 F. Supp. 538, 544 (S.D.N.Y. 1984). 166. Jimenez, 311 F.2d at 547. 167. See id. at 557-58 (stating ruler may act in his official or unofficial capacity). Similarly, the Second Circuit in Marcos I, referring to the same illegal activities the rulers committed in Jimenez and Marcos 11, held that because Marcos failed to distinguish between his acts as head of state and his private acts, the act of state doctrine did not protect him. See Republic of Philippines v. Marcos, 806 F.2d at 359 (holding burden of proof on party invoking act of state defense), cert. denied, 107 S. Ct. 2178 (1987). 168. Jimenez, 311 F.2d at 557-58. See also supra notes 90-94 and accompanying text (describing facts ofJimenez). 169. Comparejimenez, 311 F.2d at 557-58 (describing Jimenez's crimes) with Republic of Philippines v. Marcos, 818 F.2d 1473, 1476 (9th Cir.) (detailing Marcos' illegal activities), reh 'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc). 170. Marcos I1, 818 F.2d at 1476. 171. SeeJimenez, 311 F.2d at 557-58 (noting dictator capable of performing private, unofficial acts). The majority cited Banco de Espana for the proposition that a governmental act is merely a step that a person capable of exercising sovereign authority takes. Marcos HI, 818 F.2d at 1483-84 (citing Banco de Espana v. Federal Reserve Bank, 114 F.2d 438, 444 (2d Cir. 1940)). The majority failed to acknowledge that the court in Banco de Espana refused to adjudicate the suit primarily because innocent victims would have been hurt. Banco de Espana, 114 F.2d at 444. 172. See supra note 144 and accompanying text (discussing Philippine Constitution). 173. See supra notes 89-94 and accompanying text (explaining distinction between ruler's public and private actions).

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of proving that the doctrine protects the conduct in question.174 In Marcos II, Marcos asserted that the act of state doctrine protected all of his behavior while he was president. 17 5 He never argued that he bought any of the property with funds he obtained through public acts. 176 Accordingly, because Marcos failed to meet this burden, the Ninth Circuit incorrectly concluded that Marcos' acts were sover77 eign acts.' B. Marcos' Activities Were Not Fully Executed in the Philippines

Even if the court was correct in concluding that Marcos' crimes were public acts, the act of state doctrine is inapplicable because Marcos' actions were not fully executed in the Philippines, and the acts violated United States law and public policy.' 78 Marcos' crimes were not fully performed in the Philippines because he attempted to hide the money he stole from the Philippines by buying property in the United States under an assumed name.1 79 Moreover, Marcos could only succeed in his illegal ventures with the aid of the United States.1 80 Because Marcos' crimes violated United States law, the Ninth Circuit may review these illegal activities. 18 1 Specifically, if
174. Marcos II, 818 F.2d at 1495 (Nelson, J., dissenting) (citing Alfred Dunhill of London, Inc. v. Republic of Cuba, 452 U.S. 682, 690 (1976); Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986), cert. denied, 107 S. Ct. 2178 (1987)). Courts are strict in this regard, and require a great deal of formality to indicate that an act is public. See Sharon v. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1984) (holding party invoking act of state defense bears strict burden of proving his acts are official). 175. Marcos II, 818 F.2d at 1495 (Nelson, J., dissenting) (stating majority's analysis proceeds on theory that plaintiff must show doctrine does not apply). 176. Id. at 1495 (Nelson, J., dissenting) (noting Marcos did not claim that he obtained funds for property legally). 177. See supra notes 174-76 and accompanying text (explaining that party pleading act of state protection bears burden of proof. 178. See Marcos II, 818 F.2d at 1476 (noting Marcos allegedly invested stolen money in United States and conducted RICO enterprise within United States). 179. See Brief of Plaintiff, supra note 115, at 6 (stating Marcos attempted elaborate scheme to conceal property in California); House Investigation, supra note 117, at 417 (submitting evidence that Mrs. Marcos' business associate hid $3.3 million for Marcoses) (statement of Rep. Salonga). 180. See Maltina Corp. v. Cawy Bottling Co., 462 F.2d 1021, 1028 (5th Cir.) (holding that act which requires participation and acquiescence of another state for it to be "fully executed" is not act "done" within territory of acting nation), cert. denied, 409 U.S. 1060 (1972); see also House Investigation, supra note 117, at 480 (stating that Marcos' illegal activities would be futile if United States adjudicates Philippines' suits) (statement of Sen. Solarz). 181. See Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2d Cir. 1965) (holding that extraterritorial enforcement of act of state turns on whether act is consistent with our
laws and policy), cert. denied, 382 U.S. 1027 (1966); cf.Marcos Case IllustratesLonger Reach of U.S. Law; National BoundariesLess of an Obstacle, Wash. Post, Oct. 26, 1988, at A4, col. 5 (noting that

Federal Grand Jury indicted Marcos on charges that he secretly invested embezzled funds in New York in violation of United States law); Ostrow & Reupel, Marcos Indicted ForRacketeering; U.S. says Ex-Philippine Leader, Wife Diverted Millions of Dollars, L.A. Times, Oct. 22, 1988, at I, col. 5 (stating that Marcos was indicted in New York for engaging in elaborate scheme to defraud U.S. investigators and financial institutions after leaving office).

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Marcos were an American official, United States courts could review his actions under the Federal Torts Claim Act because those actions were not within the Act's discretionary duty exception.' 8 2 Courts have drawn parallels between sovereign immunity and some of the principles in the Federal Torts Claim Act, holding that a foreign government is liable for civil prosecution for crimes committed in the United States. 85 Because the act of state doctrine is derived from sovereign immunity, these parallels are equally applicable to 84 the act of state doctrine.1 The Ninth Circuit's refusal to adjudicate the legality of Marcos' actions in effect validates Marcos' illegal actions.1 8 5 This refusal contradicts precedent which requires a court to invalidate shocking acts of foreign governments affecting property within the United States. 186 Having concluded that Marcos' illegal activities were public acts, the Ninth Circuit then discussed whether adjudication 87 would unduly interfere with foreign relations.' C. Adjudication Will Promote Foreign Relations In allowing Marcos to invoke the act of state doctrine, the majority emphasized the goal of preventing embarrassment to the United States executive branch.' 8 8 This decision, however, serves to create, not limit embarrassment to the executive branch. The court's argument that friction between the Philippine Government and the United States may result from adjudication is illogical because the Philippine Government brought the suit.' 89 Moreover, the Depart182. See Federal Torts Claim Act, 60 Stat. 842 (1946) (codified as amended at scattered sections of 28 U.S.C. (1982)) (holding United States officials liable in tort for non-discretion-

ary duties); see also supra note 55 and accompanying text (describing Marcos' illegal activities). 183. See Letelier v. Republic of Chile, 488 F. Supp. 665, 670-71 (D.D.C. 1980) (applying principles of Federal Torts Claim Act to allow adjudication of claim against Chile). 184. See supra notes 14-28 and accompanying text (examining development of act of state doctrine). 185. See House Investigation, supra note 117, at 492 (arguing that United States refusal to help Philippine Government recover money Marcos stole will imply United States approval of Marcos' crimes) (statements of Reps. Salonga and Solarz). 186. See Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2d Cir. 1965) (refusing to enforce ordinance because it is "shocking to our sense of justice"), cert. denied, 382 U.S. 1027 (1966). 187. Republic of Philippines v. Marcos, 818 F.2d 1473, 1486-88 (9th Cir.), reh 'ggranted, 832 F.2d 1110 (9th Cir. 1987) (en banc). 188. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 US. 398, 428 (1964) (stating rationale for invoking act of state doctrine is weak when government no longer in power); In re GrandJury ProceedingsJohn Doe No. 700, 817 F.2d 1108, 1111 (4th Cir.) (holding Philippines could waive Marcos' head of state immunity), cert. denied sub nom. Marcos v. United States, 108 S. Ct. 212 (1987); Republic of Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir. 1986) (holding government may waive former ruler's act of state immunity), cert. denied, 107 S. Ct. 2178 (1987). 189. The majority argued that Marcos may regain power in the Philippines or the court may determine that he obtained the money legally. Marcos II, 818 F.2d at 1485-86. Either

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ment of State had already approved a judicial determination. 190 As the dissent pointed out, in effect, the majority argued that potential embarrassment to United States relations with the Philippines outweighs the certain embarrassment to foreign relations if the United States courts ignore the Philippine Government's request for adjudication of the suit. 19 1 Such adjudication could disrupt our relations with the Philippines only in two unlikely situations. If the court were to determine that Marcos acted illegally, and Marcos were to regain power, the new government may view the United States Government as hostile. 192 Alternatively, if the court determined that Marcos acted legally, the present Philippine Government would view our government unfavorably.' 9 3 These situations are unlikely to occur. 19 4 It is certain, however, that the Ninth Circuit's insistence on applying the act of state doctrine to 95 protect Marcos will offend the Philippine Government. 1
event would harm United States relations with the Philippines. Id.; see Brief of DefendantsAppellants Diosado C. Ordonez and Anchor Holdings, N.V. at 14-15, Republic of Philippines v. Marcos, 818 F.2d 1473 (9th Cir. 1987) (No. 86-3859). See also infra notes 190-93 and accompanying text (discussing likelihood of embarrassment from adjudication). 190. Marcos II, 818 F.2d at 1496-97 (Nelson, J., dissenting). 191. Id. at 1496 (Nelson, J., dissenting). See John Doe, 817 F.2d at 1111 (noting court's refusal to honor Philippine Government's waiver request will embarrass foreign relations); Marcos 1, 806 F.2d at 359 (deciding to waive Marcos' act of state immunity to avoid harming United States relations with Philippines). 192. Marcos II, 818 F.2d at 1486. 193. Id.; see also Statement of Michael H. Armacost, United States Undersecretary of State for Political Affairs, reprinted in 25 I.L.M. 403, 409 (1986) (stating Aquino Government will view actions as indications of future relations between United States and Philippines). 194. First, it is doubtful that Marcos will regain power. See State Dep't Aides See Aquino Rule as "Stable", N.Y. Times, Aug. 28, 1987 at A8, col. I (stating that United States Government believes Philippine people support Aquino). Even if Marcos were to regain power, he surely would recognize that the United States Government has acted well beyond its obligations to him. For example, the United States granted him political asylum and immunity from criminal prosecution. Second, it is unlikely that United States courts would determine that Marcos obtained all of his wealth legally, thereby embarrassing the Philippine Government. See House Investigation, supra note 117, at 476 (stating it is impossible for Marcos to have obtained all of his wealth legally) (statement of Rep. Salonga). During the twenty years that Marcos was in office, his net worth grew from $60,000 to $1.5 billion. Brief of Plaintiff, supra note 115, at 6, Marcos' reported income during this period was only $337,000. Id. One can reasonably conclude that Marcos obtained the bulk of his wealth illegally, while in power. See House Investigation, supra note 117, at 488 (stating that Marcos' illegal manipulations while in office "make 'Dallas' or 'Dynasty' look like an episode from 'I Remember Mama' ") (statement of Rep. Solarz); id. at 462 (noting that documents Marcos brought to Hawaii demonstrate extensive commingling of public and private resources by Marcos and a pervasive pattern of using public office for private gain) (statement of Rep. Solarz). 195. The court in Marcos II, perhaps realizing that a judgment of Marcos' actions is unlikely to cause executive embarrassment, asserted that executive embarrassment is only a minor consideration. Marcos H, 818 F.2d at 1485. This statement, however, contradicts precedent. See supra notes 59-73 and accompanying text (stating that embarrassment of executive is important in considering application of act of state doctrine). Courts, having long noted the importance of separation of powers, substantially defer to executive statements regarding the propriety of applying the act ofstate doctrine. Seesupra notes 59-73 and accom-

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Beyond these flaws, the court's refusal to determine the legality of Marcos' acts directly contradicts precedent, which explains that the act of state doctrine is difficult to justify when the foreign state itself requests waiver of the doctrine. 196 Moreover, courts have noted that there is little justification for applying the act of state doctrine to protect a government that is no longer in power. 197 The Court in Sabbatino, by noting the importance of consensus in international law on the objectionable nature of the act in question, supports the argument that adjudication will not interfere with foreign relations.1 98 Accordingly, the Ninth Circuit should have held that adjudication of the validity of Marcos' illegal practices, such as bribes, which are universally recognized as corrupt, is proper.19 9 Moreover, because the Department of State has urged United States courts to honor the Philippine Government's requests for adjudication of suits against Marcos, the Ninth Circuit's argument that a judicial determination will intrude upon the executive branch's foreign affairs prerogative lacks merit. 20 0 Specifically, Michael H. Armacost, Undersecretary of State for Political Affairs and former Ambassador to Manila, stressed the importance of United States relations with the Philippines in a declaration to the United States Court of International Trade. 2 0 1 He asserted that the Aquino Govpanying text (explaining courts must follow executive pronouncements when applying act of state doctrine). See also infra notes 199-202 and accompanying text (arguing that refusal to adjudicate disputes between Philippine Government and Marcos will harm relations between the two countries). 196. Marcos II, 818 F.2d at 1496 (Nelson,J., dissenting) (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 400 (1964) (holding there is less justification for applying the act of state doctrine to government no longer in power)); Marcos I, 806 F.2d 344, 359 (2d Cir. 1986) (stating rationale for invoking the act of state doctrine is weak when state requests waiver of the doctrine), cert. denied, 107 S. Ct. 2178 (1987)). 197. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (holding when government no longer exists, United States' interests toward sovereign are "measurably altered"); Marcos I, 806 F.2d at 356 (stating there exists little danger that court would interfere with executive branch's conduct of foreign affairs when adjudicating suit against government no longer in power); Bernstein v. N.V. Amerikaansche Stoomvart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954) (emphasizing act of state doctrine applies to government "extant and recognized"). 198. Sabbatino, 376 U.S. at 428. A suit involving an action that civilized nations have denounced as immoral will not harm foreign relations. Id.
199. See Note, ProhibitingForeign Bribes: Criminal Sanctionsfor CorporatePayments Abroad, 10 CORNELL INT'L LJ. 122, 138 (1922) (listing 65 countries which recognize bribery of public officials as immoral). 200. Marcos II, 818 F.2d at 1498 (Nelson, J., dissenting). The majority argued that the Second Circuit's reliance on the executive pronouncement in Marcos I is inapplicable because in that case the Philippine Government did not ask the court to determine the validity of Marcos' actions. Id. at 1487. This argument is irrelevant because any suit against Marcos would be worthless without a freeze of Marcos' property to ensure recovery. Moreover, the dissent points out that in Marcos II, the trial court may, in its discretion, decide not to adjudicate the claim based on the doctrine of forum non-conveniens. Id. at 1497 n.7 (Nelson, J., dissenting). 201. Id. at 1486-87. Armacost noted that the two countries share basic values such as a

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emiment will perceive our refusal to prosecute Marcos as an indicator of future unfavorable relations between the countries. 20 2 He, therefore, concluded that United States foreign policy would benefit if the court honored the Philippine Government's request for adju20 3 dication of suits against Marcos.
CONCLUSION

Republic of Philippines v. Marcos20 4 represents a substantial departure from act of state precedent, designed to promote international comity and separation of powers. Courts have long recognized that a ruler's illegal acts, contrary to the public interests of the sovereign, are private acts which the act of state doctrine does not protect. Moreover, the act of state doctrine is inapplicable because Marcos' actions were not fully executed in the United States. Even if the court found the doctrine applicable, it should have deferred to both the United States and foreign sovereign executive requests for waiver of the doctrine. Such requests represent assurances that adjudication will promote international relations. Accordingly, the Ninth Circuit's decision encourages rulers to misuse their power and engage in unauthorized behavior while in office because it implies that a United States court will allow a ruler to invoke the act of state doctrine even in the most egregious circumstances.

commitment to democratic government and respect for human rights. Id. Moreover, two of the United States' largest overseas military facilities are located in the Philippines and the two countries have numerous defense agreements. Id. See also id. at 1496-97 (Nelson, J., dissenting) (discussing Armacost declaration). 202. Id. 203. Id. 204. 818 F.2d 1473 (9th Cir.), reh'g granted, 832 F.2d 1110 (9th Cir. 1987) (en banc).