II. INTERNATIONAL LAW HAS CHANGED

International law itself has undoubtedly changed. The traditional view of international law was of a system of law governing the conduct of States in their activities among themselves on the international plane.Footnote ¹⁸ It was in a very real sense the law of nations. This was reflected, for example, in the attitude of international law to diplomatic protection of nationals. Ill-treatment by one State of a national of another State, contrary to established rules of international law, was a breach of the obligations owed by one State to another and gave rise to a claim by one State against the other. The formal and elaborate framework developed by international law did not cater at all for the way in which a State treated its own nationals. Hence the problems which arose where the ill-treatment was of those of dual nationality and of none.

But international law has, in recent decades, developed a new international law of human rights which acknowledges the rights of individuals against all States, including in particular the State of their nationality. So it is no exaggeration to say that a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of States among themselves on the international plane has long been discarded and in its place has emerged a system in which individuals are rightly considered to be subjects.Footnote ¹⁹ As a result, we now have international conventions such as the UN Convention against Torture which has not only established universal jurisdiction over offences of torture among its adherents, but has also given rise to peremptory rules of customary law prohibiting torture—rules of jus cogens from which no derogation is possible.

States now accept that international law imposes minimum standards for the content of a State's domestic law. Lord Sumption referred to this change in Belhaj:

As a result, international law and domestic systems of law are no longer operating in wholly discrete spheres, totally remote from one another. Although the systems remain different in nature, much of the subject matter which they seek to regulate is appropriate for regulation by both international law and domestic law. In the light of this growing overlap of subject matter, it is not surprising that issues of international law are today encountered far more frequently before national courts.

Writing in 1996 in an essay to mark the publication of the hundredth volume of the International Law Reports—a work which has played a vital role in making national judicial decisions on international law readily accessible to practitioners, judges and scholars worldwide—Sir Robert Jennings observed:

III. ECHR

A second development—and a comparatively late one—which has had a major influence so far as the United Kingdom is concerned, is the implementation of the European Convention on Human Rights (ECHR) by the Human Rights Act 1998. Of course, at one level this means that judges in this jurisdiction are required to give effect to the treaty obligations of the United Kingdom under the Convention. But its influence is far more profound than that. Giving effect to the Convention often requires national courts to rule on issues of international law. Thus, for example, in Al-Waheed v Ministry of Defence; Serdar Mohammed v Ministry of Defence Footnote ²² Lord Reed in the Supreme Court considered whether there exists a right of detention in customary international law during non-international armed conflict and in Al-Saadoon v Secretary of State for Defence Footnote ²³ the Court of Appeal addressed issues under the UN Convention for the Protection of All Persons from Enforced Disappearance, a Convention to which the United Kingdom is not a party.Footnote ²⁴

The implementation of ECHR in our domestic law has had an important influence on what is considered justiciable. In R (Gentle) v Prime Minister,Footnote ²⁵ where the mothers of two servicemen killed while serving with the British armed forces in Iraq unsuccessfully sought judicial review of a refusal to hold an independent inquiry into whether HMG had taken reasonable steps to establish the legality in international law of the invasion of Iraq, the Supreme Court considered that the duty to investigate under Article 2 ECHR did not arise. However, Lady Hale observed that she would have been inclined to accept the other planks of the claimants’ arguments:

She went on to explain that the subject matter cannot preclude this, although this would be a factor tending against interpreting a right in such a way as to require the courts to do this.Footnote ²⁶

In Benkharbouche v Embassy of the Republic of Sudan Footnote ²⁷ Lord Sumption, delivering the judgment of the Supreme Court, considered that the court was required to decide the widely contested issue of the scope of State immunity in embassy employment disputes. The issue of immunity arose there, as it frequently does, within the context of Article 6 ECHR which secures a right of access to the courts of a contracting State. But Article 6—a treaty provision—must be interpreted in accordance with ‘any relevant rules of international law applicable in the relations between the parties’.Footnote ²⁸

Lord Sumption identified a number of situations in which the domestic court considering the obligations of the United Kingdom in international law may properly limit itself to asking whether the United Kingdom acted on a tenable view of those obligations.Footnote ²⁹ These may include where the court is reluctant in principle to decide contentious issues of international law if that would impede the executive conduct of foreign relations, where the rationality of a public authority's view on a difficult question of international law may depend on whether its view of international law was tenable, rather than whether it was right,Footnote ³⁰ or where the court is unwilling to pronounce upon an uncertain point of customary international law which only a consensus of States can resolve.

In Benkarbouche, however, the Supreme Court held that it was necessary to address the disputed issue of international law head on. The question was not whether the United Kingdom had taken a tenable view of the rules of international law but whether those rules required it to grant immunity in this kind of embassy employment dispute. It was only if they so required that they could provide an answer to the claim under Article 6.Footnote ³¹ It concluded there was no such rule of international law.

It is significant that the Supreme Court felt able to come to this conclusion in an area which has, in the past, been highly controversial. For example in Fogarty v United Kingdom in 2001 the Strasbourg court had observed that (while there appeared to be a trend in international law towards limiting State immunity in respect of employment-related disputes) where the proceedings related to employment in a foreign mission or embassy, international practice was divided on the question whether State immunity continued to apply and, if it did, whether it covered disputes relating to the contracts of all staff or only the more senior members of the mission. In its view, it could not be said that the United Kingdom was alone in holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such immunity, the United Kingdom fell outside any currently accepted international standards.

In the view of the Supreme Court in Benkharbouche, however, there was an ascertainable rule of international law and the court was required to identify it. In its view there was no basis in customary international law for the application of State immunity in an employment context to acts of a private law character and therefore the State Immunity Act 1978 could be regarded as giving effect to customary international law only to the extent that it distinguished between exercises of sovereign authority and acts of a private law character and required immunity to be conferred on the former but not the latter.Footnote ³² It is also notable that in Benkarbouche the Supreme Court took the opportunity to reassess the whole basis of State immunity and to emphasise that the correct view of the development of the customary international law of State immunity was not of an absolute immunity subject to exceptions but of a rule which gave rise to immunity only in respect of acts done in the exercise of sovereign authority.

It is necessary to address here the considerable expansion of the scope of the ECHR which has taken place. By this is not meant the emergence of further substantive and procedural rights ancillary to those expressed in the Convention itself, but the widening of the ambit of application of the Convention. This has had a very significant influence in bringing issues of international law for decision before the courts in this jurisdiction.

The ECHR was conceived as a regional treaty which was not intended to confer or to secure universal rights. Article 1 ECHR provides that the contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention.Footnote ³³ Decisions of the Strasbourg court have affirmed that the jurisdiction referred to is essentially territorial, subject to certain exceptions. Nevertheless, a considerable expansion of the Convention's scope of application has taken place.

First, in Soering v United Kingdom Footnote ³⁴ the Strasbourg Court concluded that a decision by a Contracting State to extradite a fugitive may engage Article 3 where substantial grounds are shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. It is now established that what has become known as the Soering principle applies equally to issues arising under Article 2 and, exceptionally, under Articles 5 or 6.Footnote ³⁵ In Soering the Strasbourg Court emphasised that any such liability is incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of the individual to proscribed ill-treatment.Footnote ³⁶ This is entirely consistent with conventional views of jurisdiction under Article 1. It applies to acts of a Contracting State in relation to a person while he or she is on its territory and does not concern a State's competence or jurisdiction to act abroad.Footnote ³⁷

The other development is more fundamental. In Soering,Footnote ³⁸ the Strasbourg court had emphasised that Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the obligation undertaken by a contracting State is confined to securing the listed rights and freedoms within its own jurisdiction. In Banković, the Grand Chamber held that it lacked jurisdiction ratione loci over a claim by relatives of those killed by NATO bombing of Belgrade during the Kosovo conflict. It explained that the Convention is a multilateral treaty operating in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.Footnote ³⁹ The Grand Chamber rejected the suggestion that extraterritorial acts could bring individuals within the jurisdiction for the purposes of some Convention rights but not others. It stated that Article 1 provided no support for the suggestion that the positive obligation in Article 1 can be divided and tailored in accordance with the particular circumstances of the extraterritorial act in question.Footnote ⁴⁰ Furthermore, it made clear that Article 1 is not to be interpreted as a ‘living instrument’ in accordance with changing conditions.Footnote ⁴¹ On the contrary it considered that the scope of Article 1 was determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection.

Nowhere in its judgment in Banković does the Grand Chamber explain the sense in which the word ‘jurisdiction’ is used in Article 1. Indeed, its treatment of ‘jurisdiction’ is rather confused. As Lord Collins pointed out in R (Smith) v Oxfordshire Assistant Deputy Coroner Footnote ⁴² its reference to extraterritorial jurisdiction as ‘including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality’ is a mixture of two entirely different concepts of extraterritoriality. The reference to ‘nationality, flag, diplomatic and consular relations’ reflects a fiction of extraterritoriality whereas ‘effect, protection, passive personality and universality’ are widely accepted exceptions to the principle that the criminal jurisdiction of a State's courts is essentially territorial. This second category has nothing to do with ‘jurisdiction’ under Article 1, which is concerned with the scope of application of obligations under the Convention. Rather, ‘jurisdiction’ under Article 1 might be thought to be concerned with the circumstances in which a State can be expected, in compliance with its treaty obligations, to protect human rights.Footnote ⁴³

The Grand Chamber in Banković, while establishing that jurisdiction under Article 1 is essentially territorial, accepted a number of exceptions to this principle. As a result, the conduct of diplomatic or consular agents, present on foreign territory in accordance with international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.Footnote ⁴⁴ The Strasbourg court has accepted that the responsibility of a Contracting State could, in principle, be engaged in respect of acts of its authorities which produced effects or were performed in territory outside that State, through the consent, invitation or acquiescence of the Government of that territory to the exercise of public law powers normally to be exercised by that Government.Footnote ⁴⁵ The Court has also accepted that the responsibility of a Contracting State could be engaged when as a consequence of military action, lawful or unlawful, it exercised effective control of an area outside its national territory. The control exercised by Turkey over the northern area of Cyprus was such a case.Footnote ⁴⁶

Since the Banković decision there has emerged a further exception in cases where the use of force by a Contracting State's agent has brought an individual under the control of the State's authorities, for example where the individual is taken into the custody of the State's agents abroad.Footnote ⁴⁷ In Issa the Strasbourg court accepted in principle that the Convention applied where Turkish troops, during an incursion into Iraq, killed Iraqi nationals, because the victims were under Turkey's authority and control through Turkey's agents operating in Iraq.Footnote ⁴⁸ In Al Skeini v United Kingdom Footnote ⁴⁹ the Grand Chamber expressly accepted this further development, observing:

It held that UK forces in Basrah, between the removal from power of the Ba'ath regime and the accession of the interim government, exercised authority and control over individuals killed in security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1.Footnote ⁵¹

As a result, therefore, it appears that amidst the clash of arms the European Convention on Human Rights is not silent. It can apply on the battlefield in foreign armed conflict in which contracting States are engaged where it applies side by side with principles of international humanitarian law, which are more familiar in this field.Footnote ⁵²

The importance of this for present purposes is that it opens up a new field of application of the ECHR and a new field of decision for domestic courts in the United Kingdom. In R (Al-Saadoon) v Secretary of State for Defence Footnote ⁵³ Leggatt J considered that it follows from the decision of the Grand Chamber in Al-Skeini that whenever and wherever a State which is a contracting party to the ECHR purports to exercise legal authority or uses physical force abroad, it must do so in a way that does not violate ECHR rights. In that case he held that the ECHR applied when an individual was shot by UK armed forces in Iraq both because such shootings occurred in the course of security operations in which the armed forces were exercising public powers that would normally be exercised by the Iraqi Government and because shooting someone involves the exercise of physical power over that person.Footnote ⁵⁴ The Court of Appeal in that case did not go that far, considering that the intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force and observing that if the logical consequence of the principle stated in Al-Skeini is that any use of extraterritorial violence is within the acting State's jurisdiction for this purpose, that is a conclusion that should be drawn by the Strasbourg court itself and not by a national court.Footnote ⁵⁵ In Al-Waheed, however, Lord Sumption considered that the practical effect of Al-Skeini had been to apply the Convention to any extraterritorial use of force.Footnote ⁵⁶ Whichever view is taken, the extension of ECHR jurisdiction is considerable. In a parallel development, in Smith v Ministry of Defence Footnote ⁵⁷ the Supreme Court concluded on the basis of Al-Skeini that the jurisdiction of the United Kingdom under Article 1 ECHR extends to securing the protection of the Article 2 rights of members of UK armed forces serving outside the territory of the United Kingdom.Footnote ⁵⁸

The more recent jurisprudence of the Strasbourg court suggests, however, that the question of the precise application of the Convention in situations of armed conflict is still unresolved. In Georgia v Russia (No 2),Footnote ⁵⁹ a case concerning the armed conflict between the Russian Federation and Georgia in South Ossetia in August 2008, a majority of a Grand Chamber observed that the Court's case law had evolved since Banković, including through its recognition that Convention rights can be divided and tailored and through the development of spatial and personal concepts of control which give rise to extraterritorial jurisdiction which must remain exceptional.Footnote ⁶⁰ Notwithstanding these changes, however, the majority observed that the Court had reiterated its statement in Banković that a State's responsibilities under the Convention cannot be engaged in respect of ‘an instantaneous extraterritorial act, as the provisions of Article 1 [do] not admit of a cause and effect notion of jurisdiction’.Footnote ⁶¹ Furthermore, while in some cases the Court had applied the personal concept of jurisdiction to situations going beyond the exercise of physical power and control over an individual in the context of arrest or detention, the majority suggested that those cases were concerned with ‘isolated and specific acts involving an element of proximity’.Footnote ⁶²

The majority held that during the active phase of the hostilities (8–12 August) the reality of armed confrontation and fighting meant that there was no effective control over the area and, further, there was no State agent authority and control over individuals.Footnote ⁶³ As a result, the majority held that the events alleged to give rise to a violation of the substantive limb of Article 2 which occurred during the active phase of hostilities did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1.Footnote ⁶⁴ The majority held that events alleged to give rise to a violation of the substantive limb of Article 2 which occurred after the cessation of hostilities on 12 August did fall within the jurisdiction of the Russian Federation which by that time had established effective control over the relevant area.Footnote ⁶⁵ However, the court also held, unanimously, that, having regard to the particular features of the case, the Russian Federation had a procedural obligation under Article 2 of the Convention to carry out an adequate and effective investigation not only into the events which occurred after the cessation of hostilities, but also into those events which occurred during the active phase of hostilities.Footnote ⁶⁶ As a result, the Strasbourg court seems to have introduced a distinction between the jurisdictional reach of Article 2 in its substantive and procedural aspects. Moreover, the precise status of Banković is now very unclear.

The matter is further complicated by a further decision of a Grand Chamber in Strasbourg in Hanan v Germany,Footnote ⁶⁷ delivered three weeks after the Georgia case, in which it held by a majority of 14–3 on the basis of ‘special features’ that Germany had jurisdiction over events allegedly giving rise to breaches of the procedural obligations under Article 2 (but not substantive obligations) in circumstances where an airstrike in Afghanistan, which had killed the applicant's sons, was carried out by US aircraft but ordered by a German colonel. As the minority pointed out, it is difficult to reconcile that result with the decision in the Georgia case that a State's responsibilities under the Convention cannot be engaged in respect of an instantaneous extraterritorial act.Footnote ⁶⁸

Another area which is now opened up for consideration by courts in this jurisdiction as a result of Al-Skeini is the precise relationship of relevant human rights conventions and international humanitarian law. In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons Footnote ⁶⁹ the International Court of Justice observed that the protection of the International Covenant on Civil and Political Rights does not cease in time of war. However, the question whether loss of life, through the use of a certain weapon in warfare was to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant fell to be determined by international humanitarian law as the applicable lex specialis. More recently, in the Advisory Opinion on the Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory Footnote ⁷⁰ and in its judgment in Armed Activities on the Territory of the Congo Footnote ⁷¹ the ICJ identified three possible situations: some rights may be exclusively matters of international humanitarian law, others may be exclusively matters of human rights law and yet others may be matters of both these branches of international law.Footnote ⁷²

The Strasbourg court has had to confront this issue of the interface between and the risk of conflict between ECHR and international human rights law. In Al-Jedda v UK,Footnote ⁷³ a case concerning non-international armed conflict, the Strasbourg court held that, in the absence of derogation under Article 15, detention in the course of an armed conflict contravened Article 5 because it could not be brought within any of the permitted heads of detention under Article 5(1). In particular, it rejected a submission that under Article 103 of the UN Charter UN Member States have an obligation to give effect to Security Council resolutions which prevail over ECHR obligations.

However, three years later in Hassan v United Kingdom,Footnote ⁷⁴ a case concerning international armed conflict or occupation to which the Third and Fourth Geneva Conventions applied, the Strasbourg court took a very different position. There the complaint was that the arrest and detention by UK armed forces in Iraq of Mr Hassan, who had been found dead in unexplained circumstances following his release from detention, were arbitrary and unlawful and lacking in procedural safeguards in violation of Article 5 ECHR.

The Strasbourg court concluded that, despite the lack of a formal derogation under Article 15 ECHR, Article 5 was modified in its application to the activities of UK armed forces in Iraq during an international armed conflict. The Court observed that while the grounds of permissible detention in Article 5(1) do not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time, there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict.

It noted that it had not been the practice of States to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. The Court noted the decisions of the International Court of Justice that the protection provided by human rights conventions and that by international humanitarian law co-existed in situations of armed conflict and that the Court must, therefore, endeavour to interpret and apply the ECHR in a manner consistent with this framework under international law.

Nevertheless, even in situations of international armed conflict the ECHR safeguards continued to apply, albeit interpreted against the background of the provisions of international humanitarian law. It considered that by reason of this co-existence of safeguards under the two systems, the grounds of permitted deprivation of liberty set out in Article 5(1) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court considered that it could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.

It emphasised, however, that deprivation of liberty pursuant to powers under international humanitarian law must be ‘lawful’ to preclude a violation of Article 5(1); it must comply with the rules of international humanitarian law and the purpose of Article 5(1) which is to protect the individual from arbitrariness.Footnote ⁷⁵ Similarly, it considered that in relation to detention during an international armed conflict Articles 5(2) and 5(4) must also be interpreted to take account of applicable international humanitarian law. This required a reading down of those provisions. While it might not be practicable in the course of an international armed conflict for the legality of detention to be determined by an independent ‘court’ as required by Article 5(4), the competent body reviewing internment under the Fourth Geneva ConventionFootnote ⁷⁶ would be required to provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness.Footnote ⁷⁷

Some idea of the range of issues which this opens up for decision by domestic courts in contracting States is provided by the decision of the Supreme Court in Al-Waheed v Ministry of Defence and Mohammed v Ministry of Defence (No 2).Footnote ⁷⁸ There the Court had to consider possible bases for lawful detention by UK armed forces in non-international armed conflicts.Footnote ⁷⁹ A majority applied the reasoning in Hassan, a case of international armed conflict, to two cases of non-international armed conflict on the basis that the essential question in Hassan had been whether Article 5 ECHR could accommodate an international law power of detention not within the cases stated in Article 5(1). Accordingly, it was irrelevant whether the international law power of detention was derived from the Geneva Conventions (in the case of international armed conflict) or Security Council resolutions (in the case of non-international armed conflict).Footnote ⁸⁰ A majorityFootnote ⁸¹ considered that authority to detain was conferred by the Security Council resolutions and that the Article 5(1) conditions were exhaustive only in peacetime conditions.

However, in the case of Serdar Mohammed the Supreme Court held that the arrangements for his detention were not compatible with Article 5(4) because he did not have any effective means of challenging the lawfulness of his detention. In those circumstances, it was not necessary to decide whether a power to detain was conferred by customary international law in cases of non-international armed conflict, although the point had been fully argued. However, Lord Reed in a very detailed judgment (with which Lord Kerr agreed) explained why in his view a power to detain was not conferred by customary international law. Lord Sumption (with whom Lady Hale agreed)Footnote ⁸² was inclined to agree with Lord Reed. In Lord Sumption's view there was consensus about a right to detain but a lack of consensus about its limits and conditions and the extent to which special provision should be made for non-State actors.Footnote ⁸³

These decisions demonstrate how the ECHR and the expansion of its scope have had a dramatic effect on the range of issues of international law which now require to be decided by courts in this jurisdiction under the Human Rights Act 1998.

IV. A CHANGE IN JUDICIAL ATTITUDES

A third important development is that alongside the change in the nature of international law there has occurred a corresponding shift in judicial attitudes in this jurisdiction. There has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law when appropriate. As a result, we are seeing a major reconsideration of concepts such as comity, justiciability and act of State and a major change in judicial attitudes towards non-implemented treaties. Courts in this jurisdiction no longer show the deferential attitude towards foreign States and governments which they showed even 20 or 30 years ago.

Consider, for example, the extraordinarily deferential approach of Lord Templeman in the Rumasa case in 1986.Footnote ⁸⁴ The court was there concerned with the effect of an expropriatory decree passed by the Government of Spain in 1983. Lord Templeman had this to say on the subject of comity:

These observations were the subject of a stinging attack by Francis Mann:

Similarly, in The Playa Larga Footnote ⁸⁷ a Cuban law which was held to be penal and discriminatory against Chile was held by the Court of Appeal not to be ‘so repugnant to British ideas of international and personal morality as to require the English courts to ignore its existence’. Dr Mann on this occasion was more restrained, simply observing that ‘[i]t may well be that such timidity is excessive and unique’.Footnote ⁸⁸

In 1971 in R v Governor of Brixton Prison ex parte Kotronis Footnote ⁸⁹ the House of Lords rejected a submission that the Greek Government, which sought the extradition of Mr Kotronis, was acting in bad faith on the ground that it in truth wanted his extradition for political reasons. In that regard, Lord Reid said:

Such broad deferential statements certainly do not represent the current judicial approach. Today, courts in this jurisdiction question, almost routinely, the conduct of foreign States and it is unimaginable that they could take the deferential line favoured by Lord Templeman or Lord Reid.

Here, the change in judicial climate referred to above is critical. There has been a striking shift in attitude towards judicial examination of the conduct of foreign States and their agents.Footnote ⁹¹ Judges in this jurisdiction are now frequently required to determine and rule on such conduct and, in particular, whether it is compliant with international law and international standards of human rights.Footnote ⁹² The following are merely examples.

1. (1) Judges hearing asylum and deportation cases are daily called upon, as part of the process of assessing the risk to individuals, to determine whether foreign governments have violated or whether there is a real risk that they will violate human rights standards. Country guidance cases are replete with findings of human rights breaches by certain foreign States. Judges are also frequently required to rule on whether other States have complied with their obligations of non-refoulement under international conventions.Footnote ⁹³

2. (2) In cases concerning selection of forum or enforcement of foreign judgments judges often have to decide issues relating to the independence and integrity of the judiciary of foreign States.Footnote ⁹⁴

3. (3) A court may have to decide whether evidence was obtained by torture carried out by officials of a foreign State in order to determine whether the evidence is admissible.Footnote ⁹⁵

4. (4) In criminal cases where it is alleged that the defendant was wrongfully brought within the jurisdiction and that the proceedings are accordingly an abuse of process, the courts have been willing to examine and rule on the conduct of foreign States.Footnote ⁹⁶ In Ex parte Bennett Lord Bridge observed:

Kotronis was considered by the Court of Appeal in 2008 in AS and DD (Libya) v Secretary of State for the Home Department.Footnote ⁹⁸ Lord Clarke MR delivering the judgment of the court observed of Kotronis:

In AS and DD (Libya) the Special Immigration Appeals Commission (SIAC) allowed appeals against orders for the deportation of the applicants to Libya, then ruled by Colonel Qadhafi, on the basis that there were substantial grounds for believing that the respondents faced a real risk of suffering treatment contrary to Article 3 ECHR. Critical to the issue was a memorandum of understanding (MOU) between Libya and the United Kingdom signed on 18 October 2005 which provided assurances that anyone deported to Libya would be properly treated. The question was whether Libya would abide by the terms of the MOU and the extent of any risk that it would not.

When the case got to the Court of Appeal, that court said that that was a question of fact for decision by SIAC and the views of the FCO were not binding on it in this regard.Footnote ¹⁰⁰ Indeed, SIAC had not shrunk from that responsibility. SIAC held that Libya would probably keep its word but that there was a risk that it would not. The reason why the assurances would be honoured was not because Colonel Qadhafi or his regime were men who could be trusted to keep their word as men of integrity and honour but because it would be in their interests to do so. It was in the interests of Libya to honour the assurances but there remained an important element of unpredictability as to what Colonel Qadhafi might do.

SIAC identified three problems.Footnote ¹⁰¹ First, it referred to a ‘combination of pragmatism with a mercurial personality’ which highlighted a conflict between a short-term reaction and a longer-term course. Secondly, the way in which Colonel Qadhafi saw his pragmatic interest in his survival might itself be unpredictable and need not to Western eyes be rational or in his self-interest. Thirdly, if Colonel Qadhafi had adopted a pragmatic approach in the past, that pragmatism was also compatible with torture, incommunicado detention, and unfair trials.

SIAC then considered whether the Lockerbie attack had the blessing of Colonel Qadhafi before considering the trial of the Bulgarian nurses in Benghazi which it described as ‘a dismal story of injustice’.Footnote ¹⁰² SIAC concluded:

SIAC therefore found that if these individuals were deported to Libya there was a real risk of treatment contrary to Article 3Footnote ¹⁰⁴ and the Court of Appeal detected no error in its approach.Footnote ¹⁰⁵

This is another example of a case where the ECHR requires the courts to decide sensitive issues of international obligations and international relations. But it also shows that the judges—in particular those sitting at first instance—are now definitely in the front line so far as the determination of such issues is concerned.

This change in judicial attitudes has taken place notwithstanding those principles of foreign act of State which have been accepted as part of our law. It is well established that courts in this country will recognise and will not question the validity or lawfulness of a foreign State's legislation or other laws in relation to acts which take place or take effect within the territory of that State.Footnote ¹⁰⁶ A corresponding principle which would prohibit a challenge to the validity or lawfulness of sovereign acts of a foreign State's executive within its own territory is now also acknowledged in English law.Footnote ¹⁰⁷

Of particular significance in the present context is the broader principle of non-justiciability relating to the transactions of States on the international plane which would prohibit sitting in judgment on the legality of the acts of a foreign government in the conduct of foreign affairs.Footnote ¹⁰⁸ These principles are, however, subject to important exceptions and limitations. In particular:

1. (1) A foreign act of State will not be recognised if it would be contrary to the public policy of the forum to do so or if the conduct is a serious violation of international law.Footnote ¹⁰⁹

2. (2) Foreign act of State does not apply to judicial acts of foreign States.Footnote ¹¹⁰ (See Yukos building on the foundation of Altimo Holdings).

3. (3) The principle is not engaged where the challenge to the act of State is incidental; it is only if the challenge to the validity or lawfulness of the State's sovereign acts is part of the very subject matter of the action that the principle will apply.Footnote ¹¹¹ As a result, those cases, such as deportation or extradition cases, or cases concerned with forum non conveniens, in which UK courts express critical views on the conduct of foreign States do not offend against notions of foreign act of State. As Lord Sumption explained in Belhaj,Footnote ¹¹² such cases are not directly concerned with the legality of the conduct of the foreign State; the English court is simply applying its own standards to an exercise of its own jurisdiction.

More controversial is a further suggested version of foreign act of State. In Yukos Rix LJ described this possible rule as follows: ‘the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country but that this doctrine only arises as a result of a communication from our own Foreign Office’.Footnote ¹¹³ The notion that a judicial refusal to apply foreign law would ‘imperil the amicable relations between governments and vex the peace of nations’—which was an early basis of the US act of State doctrineFootnote ¹¹⁴—has been much criticised, most notably by Francis Mann.Footnote ¹¹⁵ As a matter of principle, Lord Greene's observation—some 80 years ago—that fear of embarrassment of the executive is not a very attractive basis upon which to build a rule of English lawFootnote ¹¹⁶ has a lot to commend it.

Yet, embarrassment of the executive may not always be readily distinguishable from damage to the national interests of the United Kingdom and it appears that there may still be room for a principle of non-justiciability or a discretionary rule founded on a fear of embarrassing the executive or damaging the national interests of the United Kingdom.

In Buttes Gas Lord Wilberforce was careful to set to one side ‘all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive)’.Footnote ¹¹⁷ In Belhaj v Straw the Court of Appeal took quite a bold line, observing that although ‘deference to executive suggestion as to the likely consequences for foreign relations may well be suited to the very different constitutional arrangements in the United States, it has played no part in the development of the act of state doctrine in this jurisdiction’.Footnote ¹¹⁸ When Belhaj reached the Supreme Court, Lord Neuberger made clear that, without a legislative basis, a court could not be bound to decline jurisdiction on the basis of an executive statement that legal proceedings could embarrass relations with another State.Footnote ¹¹⁹ However, both Lord NeubergerFootnote ¹²⁰ and Lord ManceFootnote ¹²¹ left open the possibility that a court may, in the exercise of its discretion, decline to hear a case on grounds of damage to the national interest or the international relations of the United Kingdom. This is likely to provide scope for future litigation.

V. CUSTOMARY INTERNATIONAL LAW AND DOMESTIC LAW

These developments have been accompanied in this jurisdiction by a shift in attitudes to the relationship between customary international law and the common law. Lord Denning's famous statement in Trendtex Trading Corporation Ltd v Central Bank of Nigeria Footnote ¹²² that ‘the rules of international law, as existing from time to time, do form part of our English law’Footnote ¹²³ was a ringing endorsement of Blackstone's view that customary international law forms a part of our domestic law:

There have been many judicial statements since 1765 supportive of Blackstone's view.Footnote ¹²⁵ There has also been a considerable weight of academic support for this view. Thus, for example, in 1992 Sir Robert Jennings and Sir Arthur Watts in their edition of Oppenheim's International Law stated that the proposition that the law of nations is part of the law of the land has been repeatedly acted on by the courts and can be regarded as an established rule of English law.Footnote ¹²⁶

Today, however, Lord Denning's view that customary international law is automatically incorporated into the common law, unless it is inconsistent with an Act of Parliament, is falling out of favour and a rather different view is coming increasingly to the fore.Footnote ¹²⁷ On this view international law is not to be regarded as automatically part of our domestic law but as a source of law which judges may apply when they consider it appropriate. This approach would involve a conscious act of judicial adoption.Footnote ¹²⁸ As Professor James Crawford puts it

Moreover, it is increasingly acknowledged that there is a danger in deriving specific rules from the sweeping generalisations to be found in some of the cases as to the nature of the relationship.Footnote ¹³⁰

The relationship between customary international law and the common law in this jurisdiction is far more complex. As part of the process of adoption or transformation, courts will have to consider whether any impediments or bars to giving effect to customary international law may exist as a result of domestic constitutional principles.Footnote ¹³¹ In addition to the restrictions imposed by the necessity of consistency with Acts of Parliament, restrictions are imposed, for example, by the principle that Parliament alone can recognise a new crime or by principles of non-justiciability—both illustrated by the decision of the House of Lords in R v Jones (Margaret). There was there no scope for the adoption into the common law of the crime of aggression recognised by customary international law.

It may be that the effect to be given to a rule of international law should depend not only upon the issue for decision and the nature of the rule in question but also upon the context in which that issue arises and the precise implications of its adoption. As Lord Mance JSC pointed out in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs, it appears that judges in this jurisdiction may face a policy issue as to whether to recognise and enforce a rule of customary international law.Footnote ¹³²

However, given the generally beneficent character of international law, the presumption should be in favour of its application. As Lord Mance observed in Keyu:

This change of perspective concerning the relationship of customary international law and the common law is not inconsistent with a greater willingness of our courts to apply customary international law. It is simply a more sophisticated and realistic view of the theoretical basis on which customary international law is applied here. Judges are increasingly aware of customary international law as a resource on which they can draw as appropriate and are increasingly willing to do so.

Keyu itself arose out of the killing of unarmed civilians by a Scots Guards patrol in Selangor, Malaya in December 1948. The appellants’ claim that customary international law imposed a duty to investigate these deaths failed because customary international law did not at the date of the killings recognise a duty to investigate suspicious deaths and, more fundamentally, because Parliament had effectively pre-empted the area of investigations into historic deaths by enacting the Human Rights Act. In those circumstances domestic courts should not recognise or import a wider principle.Footnote ¹³⁴ There was, as a result, no scope for the adoption into the common law of a rule of customary international law.

By contrast, R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs Footnote ¹³⁵ provides a striking example of the adoption into the common law of rules of customary international law conferring immunities on special diplomatic missions—but only after a scrupulous examination of possible countervailing constitutional principles.

The United Kingdom is not a party to the UN Convention on Special Missions 1969. Nevertheless, the Court of Appeal held that there was sufficiently widespread, representative and consistent State practice which established a rule of customary international law that requires a receiving State to secure, for the duration of the visit, the core immunities for members of a special mission accepted as such by the receiving State. The Court of Appeal concluded that there is a presumption that a rule of customary international law will be adopted into the common law without the need for legislative intervention unless there is some positive constitutional principle which would prevent this. The presumption, it said, reflected the policy of the common law that it should be in line with the common customary law applicable between nations. There was in that case no excluding constitutional principle.

While there exists a principle that a new criminal offence in domestic law can only be created by Parliament, there is no equivalent principle in relation to recognition of immunities from process. Recognition of special mission immunity did not involve the court trespassing illegitimately on an area reserved by Parliament for itself. The rule of customary international law was narrow and simple and did not call for any legislative choices to be made. Furthermore, it was consistent with domestic constitutional principle that the executive should decide who should qualify as a member of a special mission for the purpose of this rule. Finally, the rule of customary international law did not conflict with other rules of international law.

The Court of Appeal concluded, therefore, that it was in accordance with constitutional principle that the courts should act to ensure that the United Kingdom abides by its obligations under international law by recognising that rule of customary international law as a norm forming part of the common law.Footnote ¹³⁶

The relationship between customary international law and the common law in this jurisdiction is not a one-way street. It operates in both directions. Decisions of courts in this jurisdiction are one aspect of State practice of the United Kingdom and, as a result, can in these changing circumstances be increasingly influential in the development of customary international law.Footnote ¹³⁷ As Lord Mance observed in Al-Waheed,Footnote ¹³⁸ the role of domestic courts in developing or even establishing a rule of customary international law should not be undervalued.

It is, however, necessary to enter an important caveat here: it is not for national courts to make the running or to force the pace of the development of customary international law, however desirable the outcome may be considered to be, by accepting as an established rule of international law a proposition not accepted by other States.Footnote ¹³⁹ As Lord Bingham put it in Jones v Saudi Arabia, one swallow does not make a rule of customary international law. In this regard it should be noted, for example, that in Elgizouli v Secretary of State for the Home Department Footnote ¹⁴⁰ the Supreme Court recently unanimously rejected as ‘impossible to accept’ the submission that ‘there is an emerging norm of customary international law that the death penalty as such is a violation of the absolute right against torture and cruel, inhuman and degrading treatment or punishment, and that a norm against the facilitation of the death penalty follows from that’.Footnote ¹⁴¹

Nevertheless, subject to this point, judicial decisions of domestic courts are an important evidence of developing State practice and opinio juris. It is quite true, of course, that judicial decisions are identified in Article 38 of the Statute of the International Court of Justice as a subsidiary means for the determination of rules of law, but as Sir Robert Jennings points out this is perhaps a reflection of the nature of the judicial function and there is no difficulty in seeing a subsidiary means for the determination of rules of law as being a source of law, not merely by analogy but directly.Footnote ¹⁴² As issues of international law come increasingly to the fore in domestic litigation in this jurisdiction, the potential of national decisions in this regard will also greatly increase.