Professor Alexander Orakhelashvili
[An earlier post on this case focusing on sources of international law is available here.]
This post discusses Shehabi v Bahrain in terms of handling international treaties within the UK’s domestic constitutional equation. It is frequently said or assumed that international treaties do not have direct effect in the English legal system without the legislation adopted by the Parliament, even if the failure to give domestic effect to a treaty could lead to the UK’s international legal responsibility for the breach of that treaty. The rationale of that position is neither unambiguous nor uncontested, and there are areas in which international treaties certainly have direct effect in English law (see further here and here). When the relevant UK legislation deals with the same subject-matter as the treaty in question, statutory interpretation methods are usually called to aid to ascertain whether and to what extent Parliament has intended to give domestic effect to an international treaty and hence consequently whether the UK is in breach of its treaty obligations. On the one hand, it is said that Parliament is a legislative sovereign (discussed here and here). On the other hand, “Parliament … is sovereign only in respect of what it expresses by the words used in the legislation it has passed”; while statutory interpretation “is for the court and for no one else” (as Lords Wilberforce and Reid have reasoned in Black-Clawson, AC [1975], 59). All that is in no contradiction with the principle of international law that a State can be responsible for violation of an international treaty owing to the conduct of any its governmental organs, whether legislative, executive or judicial (Article 4 ASR 2001).
Against the background of the above fundamentals, the Shehabi case before the Supreme Court has dealt with two international conventions on State immunity (discussed here), one of which is rather under-subscribed (ECSI 1972) and another one which is not in force (UNCSI 2004).
The Court has found that section 5 SIA is clear to the effect that the causation of the injury requirement does not inherently include the perpetrator’s presence in the UK requirement, even though Article 11 ECSI lists both those requirements in turn. Counsel for Bahrain had argued that section 5 SIA is reasonably capable of bearing the meaning that reflects the requirements arising under ECSI “and it should therefore be interpreted accordingly.” Otherwise, “the exercise of jurisdiction in circumstances where the actor was not present in the United Kingdom at the time of the relevant act would constitute a breach of the ECSI” (para. 72). However, the Court concluded that “the departure from the treaty scheme is deliberate” (para. 74). The Court had thus brought the breach issue to the forefront and it did not necessarily need to do so. ECSI was not relevant in this case, given that Bahrain is not party to that Convention. Similarly, UNCSI used as guide to statutory interpretation (paras 98ff.), even if not in force at all and not ratified by the UK.
In addition to similar problems arising with regard to customary international law (discussed here), the Supreme Court’s judgment also appears to endorse a unilateral concession from the UK to Bahrain that the latter can in principle rely, vis-à-vis the UK, on the legal position operating under ECSI, thus making it easier to allege or conclude that the UK is in violation of its international obligations operating towards Bahrain. And then, at paragraph 96, the Supreme Court is even effectively endorsing a dual violation of international law through its own decision, namely one including the breach of rules arising under two separate sources of international law: treaty law and customary law.
That conclusion is only strengthened if we focus on what dissenting Lords have said. Lord Leggatt was vocal that “The [1978] Act must be interpreted in a way that does not place the United Kingdom in breach of its treaty obligations, unless it is plain that the legislation was for some reason intended to do so” (para. 164, see further paras 231-232). Overall, the same legislative presumption is endorsed here as one adopted by the majority, and with the express articulation of the breach factor. Also, both majority and dissenting Lords seem to treat ECSI as the governing framework of international legality on the subject-matter of this case.
In general, it is not impossible to factor in various interpretative elements in the process of statutory interpretation to make legislation consistent with the relevant treaty. To illustrate, in Al-Skeini Baroness Hale and Lord Rodger referred to the overall purpose of the 1998 Human Rights Act (as opposed to the letter of its specific provisions) and disagreed with Lord Bingham on the construction of 1998 Human Rights Act with regard to extra-territorial violations of ECHR (for analysis see here). But in that case, unlike Shehabi, there was a clear need to comply with ECHR, as even Lord Bingham who was the sole dissenter in that case has plainly admitted that Article 1 ECHR did not have to be applied domestically, even if the Strasbourg Court would find the UK in violation of the ECHR. Also, the ECHR was applicable to the UK’s underlying conduct ratione personae, which is not the case for ECSI when purported to be applied to UK-Bahrain or UK-Saudi Arabia relations.
And then, the fact that ECSI is imitated as the governing international legal framework in this case, is complemented with the fact that the Court’s way of statutory interpretation and, hence, confirmation of the breach of ECSI was, to an important extent, a product of judicial discretion. Indeed, the way of handling statutory interpretation methods by the majority and minority comes across as mutually opposed counter-assertions. The majority reasons to the effect that “an act” under section 5 SIA does not include physical movement within the realm’s territory (para. 93, see also para. 130 on human and non-human agencies). Dissenting Lord Burrows suggests, in relation to “acts” covered by section 5, that “a natural meaning in context would not differentiate between the actor and the act” (para. 331) and that an “act” includes a person who perpetrates it (para. 332). Dissenting Lord Leggatt endorses the same textual interpretation of section 5 (para. 198), but he also alludes to the legislative purpose of SIA to enable the UK to comply with ECSI (para. 231). Either way, and as there is no inherent hierarchy as between various interpretative elements in English law, the outcome is or would be determined through a judicial input on statutory interpretation, a task performed entirely by courts, with the purported judicial outcome of either endorsing or avoiding the UK’s violation of its international obligations. And this factor is also inherently part of the UK’s constitutional position on the role of courts in statutory interpretation vis-à-vis the Parliament.
The way out of the dilemma could have been far simpler and more straightforward. While statutory interpretation focusing on words contained in legislation focuses on Parliament’s intention, the Parliament should not be presumed to have endorsed through those words the legal position plainly going beyond UK’s international legal obligations, namely in relation to non-parties to the relevant treaty. Otherwise, the decision to attribute to the Parliament the intention to disregard international law to a greater extent than it would actually do could have some knocking-on effects.
This concerns the nature of statutory exceptions to immunity under SIA. The majority cite at para 43 Lord Sumption’s opinion in Benkarbouche that exceptions to immunity under sections 3 to 8 SIA “are so fundamental in their character, so consistent in their objective and so broad in their effect as to amount in reality to a qualification of the principle of immunity itself rather than a mere collection of special exceptions.” That would be a correct conclusion only if it were to be premised on entertaining a rather peculiar premise that State immunity is absolute immunity, both under international law and as endorsed in the UK’s law compatibly with international law. Endorsing such abstract construct is possible only through natural lawyering to the effect that such absolute immunity itself has a transcendent rationale with which the combined purpose of statutory exceptions is not incompatible. However, a speculation that SIA provides an original and free-standing concept of State immunity would be self-referential and circular, given that the purpose and rationale of main rule of immunity depends on the purpose or rationale of statutory exceptions to that immunity, and vice versa, to the effect that on its own neither of those elements has any concrete or cognisable essence. There are no separate concepts or rationales of a general immunity and a sum of statutory exceptions to it. Instead, there is one single statutory construct of absolute immunity (one that clearly is not endorsed by international law) qualified by specific exceptions (Lord Diplock in Alcom v Colombia, [1984] AC 580 at 600).
The above analytical problem found a rather empirical reflection both in Al-Masarir and Shehabi. At paragraph 43 of Shehabi, the Supreme Court effectively backtracks from Lord Sumption’s natural law reasoning and endorses a more down-to-earth view that each exception to immunity simply does what it does. The Supreme Court has stated in Shehabi that “The exceptions to immunity in sections 3 to 8 [SIA] do not preclude the exercise of adjudicative jurisdiction by UK courts in respect of the matters they identify. In some instances these relate to non-sovereign activities. It is, however, a striking feature of section 5 that it does not distinguish between sovereign and non-sovereign acts.” This is said against the background of the assumption that Bahrain’s acts impleaded here were jure imperii acts under customary international law. Whatever happened to the common underlying purpose of those statutory exceptions, one is hence left to wonder.
In common law systems, it is ultimately courts who determine the effect of legislation as well as common law rules that include customary international law. As a corollary, courts’ decisions can engage international responsibility of a State. Just as 20 years ago it was the House of Lords who approved and validated a forward-looking deal between the UK and Saudi Arabia on the ongoing position to provide perpetrators of torture with impunity, so the outcome in the present case is a product of judicial decision-making. What happened in Shehabi is, hence, not a first situation of this kind.
Before Jones v Saudi Arabia decided 20 years ago before Shehabi, English courts did not pretend that torture was an act jure imperii. Nor did they have any trouble to accept that SIA had nothing to do with the restrictive doctrine of State immunity (see, among others, Lord Diplock in Alcom and Lord Wilberforce in Congreso as cited by dissenting Lords at paragraphs 165-166 of Shehabi). However, the opposite pretence in Jones v Saudi Arabia has altered the domestic legal landscape, and influenced litigation arguments as well as judicial reasoning over decades. Pretty much in vain, as subsequent developments demonstrate. The manipulation of legal reasoning in Jones to loyally and carefully protect friends from enemies (the relevant pattern discussed here) has turned out to be counter-productive. For, neither diplomatic inconvenience is going to be any less, nor damages (to be) awarded to surveillance victims (reported here) are going to be any lower than anything awarded to victims of torture in Jones would have been.