Professor Alexander Orakhelashvili
Thank you very much, Dean of the Law School, for your kind introduction.
The problem stated in the title of this lecture has to do with two issues: whether international law is given proper and sufficient effect in the UK’s legal system, and whether national authorities, notably courts, interpret and apply international law correctly.
International law has been applied in the English legal system for about three centuries. Past few decades saw a significant increase in this practice, with a fresh emphasis on the issues of human rights and international criminal justice. In 1999, the House of Lords decided that Senator Augusto Pinochet, former head of State of Chile, did not enjoy immunity for torture as a former head of State in the UK.[1] A few years later, the House of Lords has determined that, under international law, evidence obtained by torture abroad was not admissible in legal proceedings in the UK.[2] This pattern was soon followed by a different trend of adjudication that resists the domestic relevance of international law. In the Al-Skeini case, the House of Lords has restrictively interpreted Article 1 of the European Convention on Human Rights and concluded that individuals at the hands of the British military in Iraq had an actionable claim under the Human Rights Act only if they were under effective control of UK authorities at the time when the relevant adversity was suffered.[3] In the Al-Jedda case, the House of Lords has decided that the applicant’s right not to be detained arbitrarily, protected under Article 5 ECHR, was superseded by resolution 1546(2004) adopted by the UN Security Council, which the House of Lords thought validated Al-Jedda’s essentially indefinite detention is Basra, Iraq. The House of Lords held that resolution 1546 gave the UK Government an entitlement to detain persons in the position of Al-Jedda, though there was no evidence of this in the text of the resolution.[4] The House of Lords then concluded that such imitated entitlement had the same effect as a putative obligation imposed on the UK to detain people in the position of Al-Jedda would have. The House did so in order to justify the use of Article 103 of the United Nations Charter and hold that the resolution displaced Al-Jedda’s rights under the European Convention on Human Rights.[5] The House of Lords relied on no other evidence than views of academic writers to support its rather innovative interpretation of the United Nations Charter.[6]
In most such cases, the international legal system responded by overruling the outcome reached by courts in the UK. In Al-Skeini v UK, the European Court of Human Rights has overruled the Government’s narrow interpretation of Article 1 ECHR.[7] In Al-Jedda v UK the European Court has overruled the Government’s position that putative entitlements under a Security Council resolution are just as good as an obligation imposed by such resolution, and found that a violation of Article 5 ECHR had been committed. What Lord Bingham had denoted as a “purposive interpretation” of Article 103 of the Charter was not sustained by that Article’s plain and ordinary meaning, which is the first rule of the interpretation of treaties.[8] In fact, a degree of resistance towards the methodology and requirements of international law has been demonstrated by Lord Bingham’s description of the plain and ordinary meaning rule as “a narrow, contract-based, meaning” rule.[9] Furthermore, in Al-Saadoon v UK, the European Court of Human Rights has pronounced on the transfer of individuals to a country where they might face death penalty, and determined that such “physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom’s obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.”[10] In other cases such as Saadi v Italy, the UK Government has intervened to reinforce the position that the scope of Article 3 ECHR is limited to enable an easier extradition or deportation of a terrorism suspect. The European Court rejected this argument and found that the potential deportation of the applicant to Tunisia would amount to a violation of Article 3.[11] In Kadi before the CJEU, the UK Government intervened in support of the European Commission to reinforce the position that Security Council decisions should be implemented even if they violate fundamental human rights and peremptory norms of international law (jus cogens); and that there was no legal basis for judicial review of such decisions under the EU law.[12] Again, this claim did not succeed. The same goes for proceedings before the European Court of Human Rights in Al-Dulimi v Switzerland.[13]
Reasons for and stakes with non-compliance with international law
Over past two decades there has been a growing reaction against giving relevance to international law on the plane of domestic adjudication. About 15 years ago, Philip Sales QC (now Lord Sales) and Joanna Clement have called for a principled debate about the role of international law in the UK’s legal system.[14] And, while there is no sign of this debate having taken place yet, it is not difficult to figure out what such debate would focus upon, should it ever take place.
It is often said that UK’s legal system is a dualist system, owing to the predominant relevance accorded to the supremacy of parliament in the matters of law-making. On its face, “dualism” is a rather neatly presented theory, relying on the fact that domestic law consists of legislation and judicial precedent that apply on the domestic plane, or within the State; while international law is derived from treaties or from customary rules and applies on the international plane, to relations between States.[15] The initial drive for the formulation of the dualist theory about 120 years ago was to emphasise that a nation-State is an autonomous unit that makes its decisions as well as assumes responsibility for those decisions. But the relevance of the dualist theory stops here. It deals only with the initial origin of national and international rules, not with their further mutual interaction, and it does not prejudice how and to what extent a legal system such as the UK legal system could go about enabling international law take domestic effect. Therefore, “dualism” is not a justification for national courts to disregard or incorrectly apply international law and thus place the UK in violation of its international obligations.
The bottomline position is that an internationally wrongful act can be committed through the enactment or implementation of national legislation.[16] National law not a defence for violation of international law. About a century ago, the Permanent Court of International Justice has explained that, “From the standpoint of International Law … municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.” They are facts to be appraised in terms of whether they comply with international law.[17] The International Law Commission of the UN has likewise explained that “The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”[18] The Commission has further explained that “a State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law. An act of a State must be characterized as internationally wrongful if it constitutes a breach of an international obligation, even if the act does not contravene the State’s internal law—even if, under that law, the State was actually bound to act in that way.” In a separate provision, the Commission has determined that that violations of international law can be committed by any organ of the State, whether it is the legislator, administration, or courts.[19] In some cases, though, a State could choose to disregard international law because no immediate consequences are feared.
The wider context of these seemingly technical matters is that none of the stages in the history of mankind has witnessed a greater political contempt to international law than one that we are witnessing in our modern times. Over many centuries, the content of international law used to be less complex and developed than it is today. The dominant doctrine was natural law that could be more easily manipulated at the service of national political aims as has been witnessed, for instance, by the argument designed by Francisco Vitoria in 16th century to provide a legal justification for the Spanish Empire to undertake their colonial expansion in the Western Hemisphere when seeking a greater wealth and power. The culture of compliance with positive international law has significantly increased from 19th century. First obvious difficulties began after the First World War when the status or binding force of positive international law was no longer possible to be explained on cultural, religious or ideological grounds.[20] Revisionism manifested in the inter-war period has led to the Second World War, and was dealt with the relative unity of great powers. This has resulted in the creation of the United Nations and Nuremberg and Tokyo Tribunals to try war criminals, and some further codification on this matter including 1948 Genocide Convention. This relatively short period of coherence was followed by the Cold War, quickly witnessing that, as one author has put it, Americans ‘ceased to be legalists and… [became] strategists’.[21] The ideological justification of hegemonic circumvention of requirements of international law was in demand again, and this was provided initially by the policy-oriented theory designed at the Law School of Yale University.[22] After the end of the Cold War the relative power of the United States as compared to that of its adversaries has increased to an unprecedented extent, and this newly acquired power position was again in the need of theoretical justification. For this purpose, the liberal theory of international law was designed by Professor Anne-Marie Slaughter of Princeton University.[23] Just like its Yale predecessor, the liberal theory has argued that Western liberal States had a more elevated status and more rights than other States. This happened in the context when the growth of disparity of power between various great powers made US hegemonic aspirations seem real. In practice this was accompanied by multiple invasions and uses of force led by the United States, namely against Iraq, Yugoslavia, Syria, and by violations of international humanitarian law in the context of the Guantanamo detention facility. As part of practical lawyering to provide comfort to hegemonic policies, the drive to reinterpret the relevant areas of law was also witnessed, trying to introduce into the legal discourse newer concepts the system of international law is not familiar with, such as pre-emptive self-defence, hybrid warfare or armed conflict, or unprivileged combatants, or attempts to revive the notion of “humanitarian intervention” that has no basis under international law either.[24] Already in 1990s, political realists such as Henry Kissinger and Samuel Huntington had warned that the American hegemony would not be viable or real in the longer run.[25] However, policy-makers who possess the decision-making power at the particular moment do not always take such a longer-term view of these matters; nor do, for that matter, vested interest groups that at times drive policy-makers’ actions.
As a consequence of all that, the main feature of the current political contempt towards positive international law is that law and politics are often not on the same side when various major international problems are dealt with. However, political contempt neither reduces nor alters the binding character or content of the rules of positive international law that provide the legal guidance as to whether a particular action or agenda embarked upon in the national interest is lawful on the international plane or not. These issues are determined according to the criteria and requirements valid under the system of positive international law that relies on consent and agreement of States. But the contempt problem is not a one that exists on the international plane only. As more violations of international law are committed, it is more likely that issues of violation of international law will arise on the domestic plane, notably in the context of UK’s participation in the above undertakings that form part of US-led hegemonic policies. When the issues of violation of international law arise before courts in the UK, the choice courts face in such cases is either to act in upholding the international Rule of Law (and often by implication the law of the land too), or to resist the domestic effect of international law out of utilitarian considerations against allowing international law to have too much influence on domestic political decisions.
The Incorporation Doctrine
In some cases, judges are genuinely restrained by relevant principles of domestic constitutional law. Once, in a case decided in 1960s, Lord Denning has put forward the thesis that an act of Parliament would be invalid if it were to contradict the European Convention on Human Rights.[26] In a later case, Lord Denning has admitted that his earlier statement “went too far” and concluded, on hypothetical terms, that “If an Act of Parliament contained any provisions contrary to the Convention, the Act of Parliament must prevail.”[27] This alteration of Lord Denning’s position has focused on a very obvious thesis of UK’s constitutional law that a court could not hold that an act of parliament was void and should not be on the statute book. The ordinary discourse about this matter also includes the issue of the relative priority of acts of Parliament over common law, which matter is ordinarily handled by courts through statutory interpretation; in this area courts enjoy a rather wide margin of freedom.[28] This means that courts can avoid making a finding that an act of Parliament requires an action contrary to international law. Overall, there are very few areas of English law in which the hands of courts are as tied as in the example illustrated by Lord Denning.
One area over which courts have a far greater control is the doctrine of incorporation of general or customary international law into English law. This has been postulated by Sir William Blackstone two and half centuries ago, to the effect that international law is “adopted in its full extent by the common law, and is held to be a part of the law of the land”.[29] Over past few decades, however, this doctrine has come under significant pressure from writers as well as in court proceedings and other contexts.
In response to the growth of customary international law (CIL), Sales and Clement have suggested that the “direct reception of, in particular, the new kind of expansive and dynamic CIL” should be resisted and “the presumption should be against direct reception of CIL into domestic law, unless a more specific set of positive criteria calling for its adoption can be satisfied.” This should be so because customary law is a growing and more dynamic area of law, which may increasingly regulate a State’s relations with its own citizens.[30] On its face at least, this is not a statement relying on legal authorities, but essentially a policy proposal to adopt a revised and unduly restrictive view of UK’s constitutional position regarding the status of customary international law in national courts. Policy considerations in favour of this view have been advocated, but constitutional considerations requiring this approach to be taken have not been shown. In fact, there could be no constitutional criteria except an adhockery to be potentially adopted by courts in a somewhat subservient position to the dynamics of national or international politics. For almost 300 years, the constitution has left this matter to courts. The above policy proposal is in essence calling for a series of self-restriction to be adopted by courts on the basis that only courts can determine, presumably by greater input of utilitarian considerations in their decision-making.
In 2010, the Government has decided to remove the reference to international law from the Ministerial Code. At that time, Guardian has reported that the proposal to enshrine respect for international law in that document had caused irritation in political circles.[31] Academic opposition to the role of international law was also witnessed. Professors Richard Ekins and Guglielmo Verdirame (now Lord Verdirame) have suggested that there are good reasons “consistent with respect for the rule of law, the constitutional law and practice of the UK should not give direct domestic effect to international legal obligations and oblige Ministers to conform to them”.[32] Eventually, judicial review proceedings followed. The Court of Appeal has said that the Ministerial Code does not need to expressly refer to international law, over and above the duty of ministers to comply with law in general. “It [was] not necessary for there to be specific inclusive language”, because the Court took note of repeated statements that the government is bound by international law.[33]
Another related development was witnessed when the Internal Market Bill intended to endorse the Government acting against international law “in a limited and specific way” was debated in the House of Commons about three years ago. During the debates Kenneth Clarke MP (now Lord Clarke), with a half century of experience as a member of parliament and cabinet minister, has provided an illuminating statement on this point. He pointed to the fact that the proposed legislation would “give Ministers complete discretion, in whatever way they eventually feel it, by secondary legislation, to defy any aspect of domestic or international law,” and that he “would find it absolutely unbelievable if such a piece of legislation found its way on to the statute book.” He “would have expected some explanation of what dire circumstances the Government were contemplating to justify such an amazing break from our traditions” to observe international law. He went on to state: “I served in Governments and Cabinets for many years … . No Government that I served in would for one moment have contemplated some adviser somewhere, or some junior Minister, presenting a Bill of this kind; it would have been rejected instantly as being incompatible with the way that we govern this country.”[34] This should be taken not only as further evidence in favour of the incorporation doctrine, but also as a statement highlighting the political culture.
The Jones case and the crime of aggression
About two decades ago, the House of Lords has put up a challenge to this doctrine in the case of Jones, dealing with disruptive activities in relation to military bases and installations within the UK to obstruct the UK’s involvement in the American-led war against Iraq in 2003. It was pleaded that what the appellants did was justified under section 3 of the Criminal Law Act 1967, which provides that “A person may use such force as is reasonable in the circumstances in the prevention of crime.” Therefore, the main issue dealt with in this case was whether the crime of aggression, as established in customary international law, is also a crime under the criminal law of England and Wales.[35]
Professedly at least, Lord Bingham was not inclined to challenge the overall relevance of the incorporation doctrine and acknowledged that it is based on multiple authorities. However, he was still hesitant, “at any rate without much fuller argument, to accept this proposition in quite the unqualified terms in which it has often been stated. There seems to be truth in Brierly’s contention (“International Law in England” (1935) 51 LQR 24, 31), also espoused by the appellants, that international law is not a part, but is one of the sources, of English law,” and hence its relevance in the area of criminalisation was not to be admitted.[36]
The judgment does not explain the distinction espoused by Lord Bingham any further. Professor Vaughan Lowe has commented that “this distinction between customary international law as part, and customary international law as a source of English law, is important”. It is, according to him, the distinction between a “rule of customary international law as such” and “the rule of English law whose source lies in international law”.[37] However, on normative terms this is a distinction without difference, and a little more than a statement about the relation between a cause and its consequence. Moreover, Professor Lowe’s statement also gives an impression that a rule of English law might be created under international law, which is a restatement of the full incorporation doctrine by using different words. It is indeed difficult to see how international law could be a source of English law without being part of it, or vice versa.
Lord Bingham attributed the “part versus source” distinction to JL Brierly, one of the leading minds of international law in the UK, and to the Kings Bench division rendered in 1905 in the West Rand case. However, the West Rand case does not contain anything to endorse the distinction in question. For one, the West Rand judgment does not even contain the word “source”. Instead, what the King’s Bench court said was that the thesis “that the law of nations forms part of the law of England, ought not to be construed so as to include as part of the law of England opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented.”[38] In other words, only positive international law derived from the agreement between States could be considered to be part of English law.
The aim the House of Lords has pursued in resisting the domestic effect of international law was to avoid the criminalisation of an act of aggression on the domestic plane. Professor Lowe has suggested that that “there is no more reason for English law to treat a particular prohibition under international law as a crime simply because international law regards it as a crime than there [would be for treating] … conduct as a crime simply because, say, Brazilian law treated it as a crime.”[39] There is one important difference, though: Brazilian law has no binding force for the UK or covered by the doctrine of incorporation. And the Jones approach is also inaccurate on the issue of courts being able to create crimes. After the House of Lords decision on Knuller v DPP,[40] at times interpreted to deny that courts could undertake criminalisation, a fresh crime of marital rape was created by the House of Lords in R v R,[41] and thus a step was taken much further than a step that would be needed to be taken in Jones where the mere domestic recognition of the already existing international crime of aggression was needed.[42]
Overall, jurisprudence of English courts both before and after Jones has considered international law as part of common law.[43] The doctrine of incorporation still remains the governing doctrine. it has been designed to avoid breaching international law by UK’s public authorities and remains a potent tool for that today, whenever there is a will to use it.
Venezuela’s Sovereign Funds and Foreign Government Recognition
Another radical deviation from the incorporation doctrine and Government’s duty to act in line with international law has been witnessed in litigation concerning Venezuela’s funds deposited in the UK. A few years ago, the outcome of presidential election was disputed in Venezuela and, while President Nicolas Maduro has continued to govern the country, his rival Juan Guaido (the favourite of the US Government to win the election) was declared by the opposition forces in the national assembly an interim president. Guaido has hardly ever been in a position of actually governing the country, but he was accorded recognition as an interim head of State by the US and their allies, including the UK. The question then arose before the UK courts as to who is entitled to receive Venezuela’s public funds deposited in the UK: the Guaido administration or the Maduro administration. The Supreme Court has concluded that the Executive’s recognition of Guaido as an interim president of Venezuela has fully disposed of the issue as a matter of UK law, regardless of several issues that arise under international law as well as under Venezuela’s Constitution that determines who ought to be the president of the country. Maduro’s de-recognition and Guaido’s recognition has been a part of the wider policy aimed at the regime change in Venezuela, the Government stating on no uncertain terms that “the oppression of the illegitimate, kleptocratic Maduro regime must end.”[44] Together with the Joint Declaration of the UK and European Countries of 4 February 2019, this has amounted to a clear statement of intention to interfere into a country’s domestic affairs and influence its domestic political process; and hence to an assertion of hegemonic authority in this matter.
Recognition of foreign States and governments is often considered to be a political issue, but nearly every aspect or manifestation of it is subject to legal constraints or generates legal consequences. This has been understood in the UK’s political system for quite some time by now. The statement made by Foreign Secretary Herbert Morrison before Parliament in 1951 was in line with the incorporation doctrine, confirming that the legitimacy criteria under international law were to guide the Government policy on recognition.[45] Later on another Foreign Secretary, Lord Carrington, has announced that the Government would no longer grant recognition to foreign governments, in order to avoid complications that such policy had entailed before.[46] Defying the requirements of both previous policies, the Supreme Court has agreed on rather blanket terms that, regardless of the Carrington statement, the Government “reserves the right to [to recognise foreign governments or heads of state] where it considers it appropriate to do so in all the circumstances”.[47]
In view of the above, under the UK law, on the position endorsed by the Supreme Court, Juan Guaido has become the president of Venezuela owing to his recognition by the UK Government, and he consequently obtained, as far as the UK law goes, a right to exercise powers and make appointments that are reserved to Venezuela’s president under the constitution of that country. As an instance of an expatriate interpretation of Venezuela’s Constitution, the Joint Declaration of the UK and European Countries of 4 February 2019 expressly relies on Article 233 of the Venezuelan Constitution as the basis for its recognition policy with regard to Venezuela’s leadership,[48] and this is the policy which the Supreme Court has validated as a matter of UK law. However, there is no examination of whether Guaido has in fact satisfied constitutional requirements to become the president under that provision. Even if presidential elections were disputed, Guaido could not be automatically considered to have been elected as president. The procedure to elect him as the interim president was not recognisable in the eyes of the Venezuelan Constitution either, because the Constitution clearly determines in which situations the president can be considered to be permanently unavailable and thus be removed from office and replaced by a different person, and the case the Supreme Court has dealt with was not one of those cases. But again, according to the Supreme Court the key factor is the position endorsed under the law of the UK that recognition granted by the Executive determines the matter. The Supreme Court chose to disregard every possible guidance that international law provides on this matter, and to endorse the position that Guaido’s status as president of Venezuela is entirely owed to foreign recognition of him in that capacity. The Government’s unlimited discretion was endorsed to recognise an aspiring government with no effective control over the country and with no recognisable status under the country’s constitution, and then in the face of the fact that the rivalling government is in the effective control of the country. The outcome endorsed here is as removed from reality as well as from legality as anything could be.
After the Supreme Court’s ruling, Guaido has been dismissed from office by his supporters, and consequently the UK government can no longer recognise him as a head or State. Earlier this year, the Court of Appeal has admitted that there has been a change of landscape, though overall it professes adherence to the Supreme Court’s overall approach to recognition.[49]
The Bancoult Case and Chagos Archipelago
The Bancoult case was about the removal of the population from the Chagos Archipelago which had before been detached from the territory of Mauritius when the latter has gained its independence and administered as the British Indian Ocean Territory. The case centred on the challenge against the 2004 British Indian Ocean Territory Constitution Order which provided that “no person is entitled to enter or be present in [that] Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.” The appellant’s argument before the House of Lords was that “Exclusion of the entire population from its traditional home is an infringement of the United Kingdom’s treaty obligations to respect the islanders’ rights to self-determination under, inter alia, the United Nations Charter and customary international law.”[50] Lord Hoffman’s leading speech refused to examine this matter in the light of international law because, as he emphatically put it, “As for international law, I do not understand how, consistently with the well-established doctrine that it does not form part of domestic law, it can support any argument for the invalidity of a purely domestic law such as the Constitution Order.”[51] At any rate, the Constitution Order was not a piece of primary legislation and was hence in principle not free from a review,[52] which seems to be the main reason why the relevance of international law on the domestic plane was resisted.
At times national courts can be confident that they can disregard international law, because they do not fear any serious consequences would ensue for the Government from that. But in the fulness of time, the consequences did arise. In 2019, the International Court of Justice has endorsed the right of Chagossians to self-determination, and declared that the territory was under the sovereignty of Mauritius.[53] The press has reported subsequently that negotiations regarding handover of Chagos to Mauritius have been opened.[54] Appellants in Bancoult did not intend anything as far-reaching as that.
A subsequent Court of Appeal decision has endorsed Lord Mance’s statement in the Keyu case that the incorporation doctrine applies in English law. But the Court of Appeal then suggested that “any presumption that customary law shapes the common law such as to give rise to a common law right of resettlement confronts the obstacle that there is statute law in the form of legislation (the Constitution Order … ) which prohibits return to the Chagos Islands, in other words there is a statutory block on the right of resettlement. This was held by the majority of the House of Lords in Bancoult (No 2) to prevent the application of any otherwise inconsistent international law rule. It has not been argued upon this appeal that this particular conclusion of the House of Lords was not binding upon us.”[55] However, as we saw, in Bancoult Lord Hoffmann was directly opposed to the incorporation doctrine. Therefore, Keyu which has been decided later on must have subverted the premise on which the Bancoult case approached in relation to the doctrine of incorporation. Hence, it is difficult to explain how the position that the Constitution Order cannot be reviewed is a position binding on the Court of Appeal.
Further Examples
There are further examples of domestic courts adopting peculiarly unilateral interpretation of international legal requirements, at times contrary to interpretation that has been adopted on the international plane. As one example, Article 14(1) of the 1984 UN Convention against Torture (CAT) provides that “each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation”. This matter arose in Jones v Saudi Arabia before the House of Lords where, in order to protect Saudi Arabia from the lawsuit for torturing a number of UK citizens, the House of Lords has decided to read this clause down as though it only applied to torture committed within the UK,[56] even though the text is quite clear that no such territorial limitation applies. The UN Committee against Torture has confirmed repeatedly, before as well as after the House of Lords decision, that the scope of Article 14 is not limited to torture committed within the forum’s territory.[57] The Committee’s General Comment No 3 has also specified that “the application of article 14 is not limited to victims who were harmed in the territory of the State party.”[58]
After the decision of the European Court of Human Rights on this matter in Al-Jedda v UK (discussed above), courts in the UK refused to accommodate the obvious requirement that Article 103 shall not come into effect unless the relevant Security Council resolution imposes an obligation on the UK Government to act in a certain way. In the case of Serdar Mohammed, Leggatt J (now Lord Leggatt) accepted the Government’s submission that the Court was “bound by the decision of the House of Lords in the Al-Jedda case to hold that in relation to the detention of SM in this case Article 5 [ECHR] is displaced or qualified by UNSCR 1890. … even where [the House of Lords decision] conflicts with the decision of the European Court.”[59] In reality, the UK Government was no more required by international law to detain Al-Jedda than Venezuela’s Constitution has ever made Guaido president of the country. Factually and legally unreal propositions have at times been adopted by the UK judiciary, and there is a magic tool enabling that happen. It is called dualism, in certain quarters at least. The well-known hypothetical example of Parliament having authority to ban smoking on the streets of Paris is rather vividly put to shame.
Another instance concerns immunity from legal proceedings to be accorded to a small number of very senior foreign State officials. More than twenty years ago, the International Court of Justice has concluded that such full personal immunity attaches to three types of officials: head of State, head of government, and foreign minister; and then only when a person actually occupies one of those offices.[60] In 2018, the UK Government’s 2018 Note on the investigation and prosecution of crimes of universal jurisdiction was published, and it has suggested that “potentially other very senior members of governments (e.g. Defence Ministers, Foreign Trade Ministers) – enjoy full personal immunity from criminal jurisdiction and all forms of arrest and detention.”[61] This approach purports to significantly expand the regime formulated by the International Court on rather tight terms, and is supported by no international authority. Nor is there any functional justification for such proposed and rather creative expansion. There is an important distinction that while a State may benefit from defence and trade ministers’ foreign trips, foreign ministers possess a qualitatively different representative status, and their need for travel abroad is indispensable for States being able to conduct their foreign policies, unlike other ministers who may incidentally get into foreign affairs.
The Al-Masarir case[62] has involved the installation by Saudi Arabian authorities of a spyware on the phone of a satirist whom the Saudi government considers to be undesirable. Under section 5 of the 1978 State Immunity Act, immunity foreign States is not available for torts committed within the UK. This is a provision entirely of the UK law and has nothing to do with the restrictive doctrine of State immunity which focuses on the nature of relevant activities and transactions, not on the place of their occurrence or performance. The Court went further, though, and declared that installation of spyware into someone’s phone was a sovereign and not a private activity, even though it does not take being a State to install spyware into someone’s phone. Having been influenced by the House of Lords decision on Jones v Saudi Arabia and the secondary literature that favours the grant of immunity to foreign States for serious human rights violations, the High Court found no difficulty in asserting that State immunity is a requirement arising under customary international law. However, following the dualist approach, the Court decided to apply the 1978 Act and deny immunity which it admitted was available under international law. Effectively, thus, the High Court has admitted that the UK Government is liable to the Saudi Government under international law for violating the latter’s sovereign immunity. Adherence to the false narrative that State immunity is a requirement arising under customary international law[63] has not been necessary to resolve the issues arising in the Al-Masarir case. But that narrative has been entrenched in the judicial practice since the House of Lords has decided the case of Jones v Saudi Arabia – rather curiously itself being the first case where a national court has endorsed a State official’s immunity for torture on the basis of international law (as opposed to national legislation).[64]
Also in the area of State immunity, courts in the UK have based their reasoning on imitated rather than real sources of international law. One such example is the 2004 Convention on Jurisdictional Immunities which has been used in cases of Jones v Saudi Arabia and Belhaj,[65] defying the fact that the Convention is not in force, the UK has not ratified it and at any rate it could not have direct force under English law without an act of Parliament domesticating it. Contrary to the expectations arising at the time,[66] the Convention not only failed to influence State practice, but it also failed to gather the rather modest 30 ratifications necessary for it to enter into force (and even if it had entered into force on those conditions, the claim that it represents any generally accepted legal position would be difficult to sustain). However, the Convention provides a comfortable ideological narrative to those who are keen on defeating human rights claims.
The problems I have addressed should not lead to overlooking the fact that courts in the UK have also given more support to the integrity of international law over the past couple of decades than could be witnessed in many other jurisdictions. This could also be attributed to the overall judicial culture of independence from other parts of the Government, as most profoundly witnessed in various areas of English public law. In the Jabar case, the Supreme Court has resisted an unduly expansive interpretation of Security Council resolutions by the government.[67] In the Belhaj and Rahmatullah cases the Supreme Court refused to endorse the broad version of the act of State doctrine that would have blocked judicial accountability for a wide range of violations of international law.[68] In the Mutua case, the High Court illustrated the compatibility of its use of English law of tort liability with the international law of State responsibility in the context of the Government liability for its activities in Kenya in 1950s.[69] In the latest Al-Jedda case, the Court of Appeal endorsed the direct effect of international humanitarian law conventions to conclude that the decision of the Iraqi interim government to restore Al-Jedda’s Iraqi nationality was not compatible with international law and hence not opposable in the UK’s legal system.[70] In the Arms Trade case, the Court of Appeal used international humanitarian law to impose restrictions on the sale of weapons to Saudi Arabia.[71] This record is impressive and richer than anything available in other jurisdictions. It demonstrates both the courts’ independence from other branches of the Government and their ability to engage and give effect to various sources of international law. It is, however, precisely in view of this evidence that outcomes arrived at in cases I have spoken about above look rather difficult to understand.
Legal Force of Decisions of the European Court of Human Rights
One more area of controversy involving the growth of international law and resistance to its domestic effect, under the pressure of political opinion or agenda and manifestos driven by utilitarian motives, is one that involves a lengthy judicial battle about the domestic force of the decisions of the European Court of Human Rights. The problem arising here is generically similar to one arising with regard to customary international law (discussed above): the law covered by ECHR develops dynamically and progresses towards providing a higher level of protection to individuals within the States-parties’ jurisdiction. Earlier in this lecture I have discussed few cases that arose under the ECHR, in the context of the Government’s external activities. The problem I would like to discuss here has to do more with the domestic law and public policy.
On the international plane, the well-established position is that the European Convention on Human Rights should be interpreted so as its provisions operate effectively and foster, rather than impede, the attainment of the Convention’s goals. As an alternative, Judge Fitzmaurice has suggested in the Golder case that the Convention, which makes heavy inroads into the domestic jurisdiction of States, needs to be interpreted restrictively, cautiously, and conservatively.[72] Fitzmaurice himself has later abandoned this point of view. In the case of National Union of Belgian Police, he emphasized that he was not “suggesting that a Convention such as the Human Rights Convention should be interpreted in a narrowly restrictive way,” and that the liberal construction of the Convention’s provision should be undertaken in the light of the legal environment prevailing at the time of interpretation. Like Lord Denning above, Judge Fitzmaurice has modified his earlier view because he realised its incompatibility with the basic elements and requirements of the international law, ones that are not subject to national discretion or otherwise negotiable or up for grab. It is in principle open to the European Court of Human Rights to develop and interpret the European Convention on Human Rights and afford to protection to individuals accordingly, simply because States-parties to the Convention have agreed, when ratifying the Convention, that the Court is placed in such position of authority.
The initial position taken by courts in the UK has been receptive to this legal requirement. Lord Bingham has stated in the case of Ullah v Special Adjudicator that national “courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”, because “the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court.” Courts in the UK “should not without strong reason dilute or weaken the effect of the Strasbourg case law . . . the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time … .”[73] While this is a correct statement of the principle, it has not gone without a challenge. Lord Kerr has queried into whether the Supreme Court had become a modest underworker of the European Court, and suggested the approach opposite to what Lord Rodger famously said in A v Secretary of State: “Strasbourg has spoken, the case is closed”.[74] Baroness Hale has similarly queried whether the Strasbourg Court or UK Supreme Court is supreme.[75] On its face at least, this kind of query seems to adopt a somewhat an inter-personal or inter-institutional perspective about the relationship between the two courts. Adhering to such perspective in practice only would risk generating or perpetuating mutual contempt between the two institutions, the way that could appeal to a tabloid reader but is hardly revealing about the underlying legal issues. On purely legal terms the relationship between the two institutions is only an incidence of the wider statutory authority that the Strasbourg Court possesses in accordance both with the ECHR and 1998 Human Rights Act. Under the Convention, States-parties are bound to implement the Court’s judgments. Under section 2(1) of the 1998 Human Rights Act, “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights … .”
Disagreement about the meaning and effect of this clause have emerged. Laws LJ has suggested that “The Strasbourg case law is not part of the law of England; the Human Rights Convention is.”[76] Baroness Hale has suggested that “the Human Rights Act does not require us to follow the Strasbourg jurisprudence, but it does require us to ‘take it into account’ (section 2(1)) [HRA].”[77] Lord Irvine has also said that “The meaning of [section 2(1)] is clear. The Judges are not bound to follow the Strasbourg Court: they must decide the case for themselves.”[78]
The European Court has the authority to interpret the Convention and its interpretation carried greater weight than any unilateral interpretation by States-parties, if for no other reason, then because the European Court has been given the statutory and delegated power to ensure the observance of the provisions of the European Convention on Human Rights. The Human Rights Act uses the words “take into account” which is at times seen to indicate that less than a clear-cut duty of national courts to conform to Strasbourg decisions is envisaged. However, the duty to take something into account is not necessarily weaker than to act in compliance with the Strasbourg Court’s jurisprudence. To take something into account means to factor it in the decision-making process, rather than bypass or disregard it. Moreover, the Human Rights Act could not use the word “binding” because that could have implied that Strasbourg decisions have the force of a judicial precedent; or that cases decided against States other than the UK could be binding on UK’s public authorities. There is, however, no such doctrine of precedent applicable in the system of the European Convention (or, for that matter, anywhere else in the international legal system), and there is no question of the binding force of the decision of any international court and tribunal beyond the scope of the parties and the case in which the decision was made. The Act simply could not create such doctrine. Instead, the statutory duty to take Strasbourg decisions into account should be seen not to weaken the relevance of Strasbourg Court decisions, but as part of the wider duty of public authorities to comply with the Convention which is meant to be authoritatively interpreted by the European Court, rather than by national authorities. Acting pursuant to the Strasbourg jurisprudence is essentially about compliance with the European Convention on Human Rights itself.
National courts have attempted to read extra conditions into the Human Rights Act. The Supreme Court has stated in the Manchester City Council case that where “there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.”[79] Similarly, Lord Sumption stated in the Chester case that “The courts are … bound to treat [Strasbourg decisions] as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.”[80] In other words, the international legal mandate of the European Court is portrayed here to operate on an implied condition that it ought to follow domestic law of the respondent State, and domestic law is portrayed as a defence to not complying with international obligations. Of course, the Supreme Court stated in the Horncastle case that there will be “rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process”.[81] But for that to happen, the European Court has first to conclude that the relevant aspects of domestic law are not incompatible with the Convention itself.
Lord Neuberger has further suggested that the Supreme Court “is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the [Supreme] Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law.”[82] Here it also bears repeating that, terms of any dialogue between the two institutions are not determined by some loose form of socialising, but is a process that is closely regulated and circumscribed by national law as well as by international law. The dialogue here is not one in the discrete, pristine, or wholesale meaning of this word, but it is an incidence of more structured relationships that include statutory elements that may not be negotiable at all.
What exactly has the dialogue movement been aiming at and how far could the European Court be expected to negotiate with and concede to national authorities? First nuance here is that, as the European Court has repeatedly explained, the Convention and its mechanism are subsidiary to national authorities in securing human rights and could give them some allowance in this process: “By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of [certain requirements arising under the Convention] … .” However, “The domestic margin of appreciation … goes hand in hand with a European supervision.”[83]
Another nuance is that in some cases the European Court may not have expressly addressed the relevant matter that arises before courts in the UK, and hence whether or not the European Convention actually contains the requirement in question may not be obvious. In this area, there could be some valid scope for judicial dialogue and that does not necessarily have to be resistance to the Strasbourg Court. Instead, the Convention spirit could also deter national courts from challenging Strasbourg. In the case of McCaughey, the Supreme Court gave effect to the Strasbourg decision in Silih v Slovenia.[84] It is not impossible either that the European Court could at times accommodate the national courts’ position, as happened in Al-Khawaja v UK, in which the Supreme Court’s approach to criminal evidence in Horncastle was approved in relation to one of the two applicants in the case.[85]
The third nuance is that, the legal context could differ depending on what type of the Convention right is at stake: one that is subject to margin of appreciation (Articles 8 to 11 ECHR), one that is not subject to such margin of appreciation, or one that cannot be suspended even in a state of emergency.
It is needless to say that, in all above cases, the final word unquestionably rests with the European Court of Human Rights.
Beyond the scope of the above legal nuance, the notion of the dialogue between national courts and the Strasbourg Court has also been raised in the context of the wider and more ideological debate about the European Convention the European Court operating as improper curtailments of the democratic process. Lord Judge has spoken of “an emerging “democratic deficit” in this context.[86] Lord Sumption has said that “The text of the Convention is wholly admirable”, but the Strasbourg court develops law so as to reflect its own view as to what is required in a modern democracy. “This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order.” To illustrate, “The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications.”[87]
There are various ways in which the European Convention on Human Rights may be described in view of different historical or contemporary context. But whatever else it is, the Convention is an agreement between its States-parties to observe the listed fundamental rights, and to endow the European Court of Human Rights with the authority to determine what the meaning, content and scope of Convention rights is. The scope of the Convention rights depends on the interpretation of the Convention according to 1969 Vienna Convention on the Law of Treaties, which endorses the principle of effective interpretation.[88] Without this ability, the Convention’s text would not only stop being “admirable” as Lord Sumption has put it, but it would have little identifiable meaning, and would mostly become dependent on how each national jurisdiction interprets the scope of each Convention right. The approach that recurringly portrays the acceptable pattern of relations between national and international authorities as conditional upon or influenced by the dynamics of conflicting political or social interests on the national plane could be in a direct contradiction with an obvious normative principle that international organs derive their own authority only from constituent instruments that create them and define their power, as opposed to some contemporaneous social or political sentiment.
In response to Lord Sumption criticism of the Convention, Jessica Simor KC has illustrated a plainly utilitarian impetus behind this thesis. As she has put it, as part of the democratic process, “The majority is very often fond of policies that target and demonise minorities; policies that make minorities’ lives more difficult—and sometimes intolerable—and politicians know this and can use such policies to great electoral benefit, offering to assuage the fears and prejudices of the majority in exchange for their vote. Fundamental rights are required for the very reason that majoritarian decision-making puts at risk the rights and freedoms of minorities.”[89] It is precisely the utilitarian political attitude that at times tends to blur the boundaries between rule of law and despotism in practice and in specific contexts. It is one thing to do an overall assessment of a political system and say whether it adheres to the former or to the latter. It is another thing to see how a democratic political system that overall adopts the utilitarian premise acts in specific contexts in relation to specific vulnerable or minority groups. Just to illustrate what is involved in this dilemma, the joint partly dissenting opinion of Sajo and Karakas in the Al Khawaja case has explained in one context that “Populism, the police and the prosecuting authorities subject courts all around the world to pressure to disregard fundamental safeguards of criminal procedure. Sometimes the demands are legitimately grounded in practical difficulties, but this is not a good enough reason to disregard the protection of the rights of the accused, which are decisive for a fair trial and the fair administration of justice.”[90] This is a vivid description of reasons why the European Court has to interpret the Convention the way that protects those vulnerable groups in the face of adverse political action. The principle that human rights are not meant to protect nations and communities, but to protect individuals from the action of those communities applies with full rigour across all cases.
Compliance and violation: law and politics
It is obvious that the culture of so-called “dualism” creates a record of violations of international law. National authorities are obviously aware that national law and policy is no defence when international law is violated. Yet, the context of hegemonic policies might have something to do with the culture of legal argument developed over the past couple of decades. To illustrate, Sir Arthur Watts, former legal adviser of the Foreign Office, spoke in early 1990s as an advocate of the strengthening of the rule of law in international affairs.[91] However, a few years later Sir Arthur has presented us with a substantially amended, a more tactical, perspective about how States and governments ought to go about international law. He suggested that “that all that States need … is to be able to advance a legal justification for their conduct which is not demonstrably rubbish. Thereafter, political factors can take over, and the international acceptability or otherwise of a State’s conduct can be left to be determined by considerations of international policy rather than of international law. In this light, if politics is the art of the possible, then international law is merely art of the plausible.”[92]
The plausibility criterion raises several questions. First question is, plausible to whom? In addition, how often could a plausible legal argument lead to a desired and correct outcome? Overall, a practising lawyer or policymaker may be tempted by the possibility that an initial violation of international law could bring about a new legal rule or standard that better corresponds to the agenda of policy-makers at the service of which the relevant legal argument or advice is produced; and that this could at times happen through the opening a sort of “dialogue” with relevant international institutions. Students worldwide are told in international law classes about the 1945 Truman proclamation that claimed continental shelf for the United States, and how other States responded with the identical approach. That was because the right to control resources in the continental shelf suited all States. But there is a small matter that the agreement from other countries, either through a treaty, or through customary rules is always subject to a high burden of proofs, or through subsequent practice that could reinterpret existing treaties, and the most optimistic ratio between it being pleaded by practising lawyers and adopted by international courts would be ten to one. The number of those who need to agree on a legal change also matters invariably. There is a saying it takes two to tango. In the area of international law-making, it may take anything between two and two hundred to tango, depending on what type of a legal rule or instrument is involved, for instance bilateral or multilateral, and how many States are already parties to it. Revisionist policies which do not succeed on the international plane manifest a process and phenomenon which is a direct parallel to resistance to the relevance and direct effect of international law on the national plane.
Moreover, as is the case pretty much like any other social system, the path of the development of the international legal system is to endorse progress and development, not stagnation, and accountability, not impunity. Conventional and customary law developments, as well as institutional developments including in the area of codification over past few decades all point into that direction. In particular, the process of multilateral formation and development of customary international law is one factor to increase the element of accountability and Rule of Law in international affairs. This process has been endorsed in multiple decisions of international courts and tribunals,[93] yet it has been downplayed in the International Law Commission’s guidelines on the formation of customary international law.
The ILC’s draft conclusion 12(3) suggests that “A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).” The ILC’s approach was subsequently disapproved by the International Court of Justice in the Chagos advisory opinion, with regard to the customary law status of the principle of self-determination. The Court stated that “The wording used in [GA] resolution 1514 (XV) has a normative character”; and
“although resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption. The resolution was adopted by 89 votes with 9 abstentions. None of the States participating in the vote contested the existence of the right of peoples to self-determination. Certain States justified their abstention on the basis of the time required for the implementation of such a right.”[94]
That satisfied both State practice and opinio juris requirements.[95] Overall, every customary rule needs to be created only once, and here the customary rule was created by States when adopting resolution 1514. The resolution was, after all, not a simple recommendation, but a statement of law by or on behalf of the international community. The General Assembly and representative multilateral conferences with a comparable State participation are the fora typically suitable for performing that task. When they state the law, that law could be binding on States, and in several jurisdictions such as the UK, it could be directly applicable law as well.
Progress and accountability are part of the path the international legal system is set on. At times, outcomes against accountability and in favour of impunity are favoured, but they do not get too far in terms of their general recognition or validity. Think, again, of the 2004 Convention on Jurisdictional Immunity; or of the decision of the International Court of Justice in Jurisdictional Immunities, adopted in 2012, which confirmed that Germany had immunity for the Nazi regime’s war crimes in Italy in 1940s. This decision was thought by many to be probably the most important decision in the area and certainly one that soundly represents the position under international law. On a somewhat intermediate note, Dame Rosalyn Higgins (former President of the International Court of Justice, though not a Judge sitting in the Jurisdictional Immunities case), described this Judgment as one which is disturbing, yet also criticised the stance adopted by human rights non-governmental organisations with regard to the Court’s failure to admit a “human rights exception” to State immunity.[96] I will not here go into flaws and deficiencies in the reasoning of that Judgment.[97] It is sufficient to point out that, in the decade that has passed since, this decision has not commanded nearly as much effect and influence as it was expected to command, and concerns about it have been shared well beyond the circle of non-governmental organisations. Overall, State practice has not been supportive of the Court’s approach. Over the past decade, outcomes opposite to those endorsed by the International Court have been arrived at in the practice of Italian, American, Swiss, Korean and Brazilian courts. The UN International Law Commission has refused to endorse the approach embodied in that case, despite the fact that a minority consisting of a few Commission members have pleaded in favour of it.
Conclusion
I do not need to say much by way of conclusion. The pattern of disregarding international law on the domestic plane has typically followed the Government policy to side with American-led hegemonic policies that have resulted in multiple wars or situations like the one regarding Venezuela. Probably with the exception of the controversy regarding the domestic legal force of a few Strasbourg Court decisions, it is difficult to see how the instances of disregard of international law on the domestic plane have ever been based on policies unique to national interest of the UK. Whether those policies have been worth pursuing is solely for the international legal reasoning to clarify and other considerations are also relevant. From the legal point of view, it is rather clear, however, that whether the lawyering efforts behind the above policies succeed does not turn on policies that drive those lawyering efforts. This matter turns, instead, on the workings of the concrete system of positive international law which has its own ways and means to deal with political contempt originating from national institutions or authorities, whether legislature, executive or courts.
The system of positive international law exercises a degree of restraining effect on what national legal systems and authorities could lawfully do. It is international law which provides a regulatory order for national legal systems, not the other way around. The more this is realised, together with the evidence that both has been alluded to above and is also available elsewhere, it will be far easier for all stakeholders to come to terms with the fact that resistance to international law is not such a good idea.
***
This brings to the end the substantive, or legal, part of this lecture. At the risk of straddling into some personal matters, a moment of delivering an inaugural lecture inevitably makes one to look backwards and account for things that have led to this present event. In that sense, while I cannot transform probabilities into a certainty, it still stands to reason to say that this present moment might not have materialised at all, had I not received continuing support from several individuals, especially from five consecutive Heads of Birmingham Law School, in a chronological order Tony Arnull, Rob Cryer (whose early, abrupt and tragic departure has had a devastating effect on many of his friends and colleagues), Andrew Sanders, Bob Lee, and Lisa Webley. I am eternally grateful for their support that has always been solid, selfless, and sustained. Many thanks to the Dean of the School for his kind introduction again, and to the College of Arts and Law staff responsible for organising this event. As for the rest of you, if you have been, thanks for listening.
[1] Pinochet III, House of Lords, (2000) 1 AC, 147
[2] A and Others v. Secretary of State for the Home Department [2005] UKHL 71.
[3] [2007] UKHL 26
[4] For a comment see A Orakhelashvili, 102 AJIL (2008), 337-345
[5] Al-Jedda v SSD, [2007] UKHL 58. Article 103 of the UN Charter provides that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail” (emphasis added). Article 25 provides that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
[6] Al-Jedda, para.33, “There is, however, a strong and to my mind persuasive body of academic opinion which would treat article 103 as applicable where conduct is authorised by the Security Council as where it is required” (per Lord Bingham).
[7] Al-Skeini v UK (GC), No 55721/07, 7 July 2011
[8] Al-Jedda v UK (GC), No 27021/08, 7 July 2011
[9] Al-Jedda (HL), para. 34
[10] Al-Saadoon and Mufdhi v. the United Kingdom, 61498/08, Judgment of 2 March 2010, para. 143
[11] Saadi v Italy, no. 37201/06, Judgment of 28 February 2008
[12] Yassin Abdulah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P, Judgment of the European Court of Justice (Grand Chamber), 3 September 2008, paras 265, 267, 276
[13] Al-Dulimi and Montana Management Inc. v. Switzerland (Grand Chamber), 5809/08, Judgment of 21 June 2016; for a comment see A Orakhelashvili, 110 AJIL (2016), 767
[14] P Sales & J Clement, International Law in Domestic Courts: The Developing Framework, 124 LQR (2008), 388
[15] A Cassese, International Law in a Divided World (1986), 19-20
[16] See A Orakhelashvili, Akehurst’s Modern Introduction to International Law (9th ed., 2022), Ch.4 on various possibilities.
[17] Certain German Interests in Polish Upper Silesia, PCIJ series A, no. 7, 19
[18] Article 3 on State responsibility, YBILC 2001, vol 2, at 36
[19] Article 4 on State responsibility
[20] On revisionism in this period see A Orakhelashvili, Scelle, Schmitt, Kelsen, Lauterpacht and the Continuing Relevance of their Inter-War Debate on Normativity, Nordic Journal of International Law 2014(1), 1-38; see also G Schwarzenberger, The Rule of Law and the Disintegration of the International Society, 33 AJIL (1939), 56, especially on the gradual elimination of spiritual standards of value from international law.
[21] M Donelan, Elements of International Political Theory (1986), 36
[22] Discussed further in A Orakhelashvili, International Law, Politics and Ideology, Ch.9 in A Orakhelashvili, Research Handbook on the Theory and History of International Law (2nd ed., Elgar, 2020); A Orakhelashvili, International Law and International Politics: Foundations of Interdisciplinary Analysis (Elgar, 2020), 54-55
[23] Discussion and references, above n.22; on theories of domination in general see A Orakhelashvili, Hegemony, Multipolarity, and the System of International Law, in M Happold (ed.), International Law in a Multipolar World (Routledge, London 2011), 114
[24] Akehurst, Ch.20
[25] H Kissinger, Diplomacy (1994), 809; SP Huntington, The Erosion of American National Interests, 76 Foreign Affairs (1997), 28
[26] Birdi v Secretary of State for Home Affairs, 61 ILR 250 at 258
[27] R v Secretary of State for the Home Department, Ex parte Bhajan Singh [1976] QB 198
[28] Relevant distinctions addressed in A Orakhelashvili, Parliamentary Sovereignty before and beyond Brexit, 15 Vienna Journal of International Constitutional Law (2021), 435-464
[29] W Blackstone, Commentaries on the Laws of England, Ch.4, Book 5
[30] Sales & Clement, 414-415, 419
[31] Letters to the Guardian, 25 October 2015
[32] R Ekins & G Verdirame, The Ministerial Code and the Rule of Law, UK Constitutional Law Association blog, 6 November 2015
[33] R (Gulf Centre for Human Rights) v Prime Minister, [2018] EWCA Civ 1855, paras 20-24
[34] Hansard, vol.807, 9 November 2020
[35] [2006] UKHL 16
[36] Jones, para. 11
[37] AV Lowe, Shadows in a Cave: The Nature of International Law when it Appears before English Courts, KH Kaikobad & M Bohlander (ed.), International Law and Power: Perspectives on Legal Order and Justice. Essays on honour of Colin Warbrick (2009), 125 at 133
[38] West Rand, 2 KB [1905], 391 at 407-408
[39] Lowe, Festschrift Warbrick, 135
[40] Knuller [1973] AC 435
[41] R v R [1992] 1 AC 599
[42] See for further detail A Orakhelashvili, The High Court and the crime of aggression, 5 JUFIL (2018), 3
[43] R v (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777; R v Gul, [2013] UKSC 64; Keyu, [2015] UKSC 69; Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent), [2020] UKSC 10; The Freedom and Justice Party & Ors R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor [2018] EWCA Civ 1719 (19 July 2018)
[44] Cited in Maduro Board of the Central Bank of Venezuela (Respondent/Cross-Appellant) v Guaidó Board of the Central Bank of Venezuela (Appellant/Cross-Respondent), [2021] UKSC 57, para. 100
[45] HC Deb 21 March 1951 vol 485 cc2410-1 (Mr H Morrison, Foreign Secretary)
[46] House of Lords Debates, vol. 408, cols 1121–1122, announcement made by Lord Carrington on 28 April 1980
[47] Maduro Board v Guaidó Board, [2021] UKSC 57, para. 91
[48] Article 233 of Venezuela’s Constitution says in the relevant part that “The President of the Republic shall become permanently unavailable to serve by reason of any of the following events: death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; and recall by popular vote.
When an elected President becomes permanently unavailable to serve prior to his inauguration, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. Pending election and inauguration of the new President, the President of the National Assembly shall take charge of the Presidency of the Republic.”
[49] Maduro/Guaido, [2023] EWCA Civ 742, paras 100-102
[50] R (On The Application of Bancoult) v Secretary of State For Foreign and Commonwealth Affairs, [2008] UKHL 61
[51] Bancoult, 490 (per Lord Hoffmann). More so, as Lord Mance has observed that, “In Croft v Dunphy the Privy Council left open also a possibility that the power conferred in that case by the British North America Act 1867 on the Dominion Parliament might implicitly be limited to the enactment of legislation conforming with international law.” Bancoult, 517 (per Lord Mance)
[52] Lord Mance has emphasised “the difference between legislation by the Crown in Council and by the Crown in
Parliament”, id.
[53] ICJ Reports 2019, 140
[54] UK agrees to negotiate with Mauritius over handover of Chagos Islands, Guardian, 4 November 2022
[55] Hoareau & Bancoult v Secretary of State for Foreign and Commonwealth Affairs, [2020] EWCA Civ 1010, 30 July 2020, para. 143
[56] [2006] UKHL 26; see, for discussion, A Orakhelashvili, State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong, 18 EJIL (2007), 955
[57] UN Committee against Torture, Observations of the Report of Canada, CAT/C/CO/34/CAN, paras 4(g) and 5(f); Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session (6-31 May 2013), para. 17
[58] General Comment No 3 (2012), para. 22
[59] Serdar Mohammed, [2014] EWHC 1369 (QB), paras 208-209; see further Abd Ali Hameed Ali Al-Waheed, [2014] EWHC 2714 (QB), 31 July 2014, para 16
[60] Case Concerning the Arrest Warrant of 11 April 2000, ICJ Reports 2000, 3
[61] Note on the investigation and prosecution of crimes of universal jurisdiction, para. 43
[62] [2022] EWHC 2199 (QB)
[63] See, on this issue, A Orakhelashvili, Jurisdictional Immunity of States and General International Law – Explaining the Jus Gestionis v. Jus Imperii Divide, in T Ruys, N Angelet & L Ferro (ed.), Cambridge Handbook on Immunities and International Law (CUP 2019), 105-124; A Orakhelashvili, State Practice, Treaty Practice and State Immunity in International and English Law, M Andenas & E Bjorge (ed.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015), 407-458
[64] Cf. R Jennings & A Watts, Oppenheim’s, vol.1, 362
[65] [2017] UKSC 3 (in the context of the Monetary Gold principle)
[66] G Hafner, Accountability and Immunity: The United Nations Convention on Jurisdictional Immunity of States and Their Property and the Accountability of States (2005) 99 ASIL Proceedings 237 at 242; H Fox, In Defence of State Immunity: Why the UN Convention on State Immunity Is Important, (2006) 55 ILCQ, 399 at 405
[67] [2010] UKSC 1
[68] Belhaj v Straw, [2017] UKSC 3
[69] [2012] EWHC 2678 (QB)
[70] Hilal Al-Jedda v. Secretary of State for the Home Department Court of Appeal (Civil Division) [2012] EWCA Civ 358
[71] Campaign against Arms Trade v Secretary of State for International Trade (CA), [2019] EWCA Civ 1020
[72] Separate Opinion of Judge Sir Gerald Fitzmaurice, Golder, 57 ILR 250-251
[73] R (Ullah) v Special Adjudicator [2004] UKHL 26 [2004] 2 AC 323, [20]
[74] Lord Kerr, The UK Supreme Court: The modest underworker of Strasbourg? Clifford Chance Lecture, 25 January 2012 (“The Supreme Court in Horncastle has shown how it is possible by patient explanation to secure a change of view.”) See further A v Secretary of State, [2009] UKHL 28, para. 98 (per Lord Rodger)
[75] B Hale, Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme? 12 Human Rights Law Review (2012), 65; European court is not superior to UK supreme court, says Lord Judge, Guardian, December 2013
[76] Hamlyn lecture 2013, para. 37
[77] B Hale, HRLR, 69
[78] Lord Irvine, A British Interpretation of Convention Rights, 14 December 2011
[79] Manchester City Council (Respondent) v Pinnock (Appellant), para. 49 (per Lord Neuberger) (emphasis added)
[80] R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent) McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) [2013] UKSC 63, para. 120 (emphasis added)
[81] R v Horncastle and others (Appellants), [2009] UKSC 14, para. 11 (per Lord Phillips)
[82] Manchester City Council v Pinnock [2010] UKSC 45 at [48]; see also P Mahoney, The relationship between the Strasbourg court and the national courts, LQR (2014), 568 at 581. On detailed discussion of the dialogue process see M Amos, The Dialogue between United Kingdom Courts and ECtHR, 61 ILCQ (2012), 557
[83] Handyside v UK, No 5493/72, Judgment of 7 December 1976, para 48; see also Silver v UK,
Nos 5947/72; 6205/73; 7052/75, Judgment of 25 March 1983, para 97
[84] In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20, para. 79
[85] Al Khawaja and Tahery v United Kingdom, Applications nos. 26766/05 and 22228/06, 15 December 2011
[86] European court is not superior to UK supreme court, says Lord Judge, Guardian, 4 December 2013
[87] Lord Sumption, Limits of the Law, 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013, 7
[88] Soering, 14038/88, Judgment of 7 July 1989, Series A, No. 161, paras 87-88; Artico, 6694/74, Judgment of 13 May 1980, Series A, No. 37, para. 33. The International Law Commission has stated in its final commentary on the law of treaties that “When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted.” 2 YbILC 1966, 219. On interpretation in general see A Orakhelashvili, The Interpretation of Acts and Rules in International Law (OMIL, OUP 2008).
[89] Jessica Simor KC, Why Lord Sumption is dangerously wrong about our human rights law, Prospect, 2 October 2023. In response, Lord Sumption has suggested that “United Kingdom should have a statutory code of human rights, call it a Bill of Rights, which would replicate the Convention but would not be subject to the jurisdiction of the European Court of Human Rights in Strasbourg”, J Sumption, Jessica Simor’s misguided defence of the ECHR, Prospect, 5 October 2023. See further here on the recent Bill of Rights bill that has advocated a somewhat similar solution.
[90] Al-Khawaja v UK, nos. 26766/05 and 22228/06, 15 December 2011 (partly dissenting opinion)
[91] A Watts, 45 GYIL (1993), 15 at 22, emphasising “the essence of the concept [of the Rule of Law], with its emphasis on the inherent significance of law and legal principles as the regulator of political action”.
[92] A Watts, The Importance of International Law, in Byers (ed.), The Role of Law in International Politics (2000), 5 at 8
[93] For a detailed analysis see A Orakhelashvili, Peremptory Norms of International Law (OMIL, OUP 2006), Ch.4; see further Akehurst’s, Ch.3
[94] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, paras 151-152
[95] Id., para. 160
[96] R Higgins, Equality of States and Immunity from Suit: A Complex Relationship, 43 Netherlands YIL (2012), 129 at 144-145
[97] See instead A Orakhelashvili, 106 AJIL (2012), 609-616