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THE BOUNDARIES OF JUSTICIABILITY

  • Dominic McGoldrick (a1)
Abstract
Abstract

This article examines the application of the principle of justiciability principally where it has been invoked in the context of claims in the UK courts related to foreign affairs or public international law. It is submitted that the modern judicial trend is to find that issues are justiciable and focus instead on the degree and intensity of the review exercised. The trend is directed and supported by the growing importance of human rights and the rule of law.

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1 ‘[J]usticiability is one of the moral principles that determine the ideal content of the rule of law’ Endicott T, ‘The Reason of Law’ (2003) 48 American J Jurisprudence 83106, at 97.

2 A related question is whether rules and principles of public international are justiciable in the UK system in the sense of allowing rights or obligations to be based on them, see Sales P and Clement J, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 124 LQR 388421; Thomas KR, ‘The Changing Status of International Law in English Domestic Law’ (2006) 53 Netherlands International Law Review 371398.

3 See FA Mann, Foreign Affairs in the English Courts (Oxford, Clarendon, 1986); Collins L, ‘Revolution and Restitution: Foreign Affairs in National Courts’ (2007) 326 Receuil Des Cours 972.

4 See Johnson A, ‘Interim Injunctions and International Jurisdiction’ (2008) 27(4) Civil Justice Quarterly 433444. In Kuwait Airways Corp v Iraqi Airways Co (n 89) the link was that Iraqi Airways Co had a registered office in the UK. No issue was taken as to jurisdiction.

5 Claims may have to be formulated and analysed in terms of the relevant domestic forums' concepts of tort, property or crime.

6 See eg R (Saeedi) v Secretary of State for Home Department [2010] ECHC 705 (Admin).

7 The doctrine of justiciability was central in Mbasogo v Logo Ltd and Others [2005] EWHC 2034, (2005) 102(39) LSG 32 (an attempt to litigate a particular foreign affair, an attempted coup in Equatorial Guinea) and in Islamic Republic of Iran v Barakat Galleries [2007] EWCA Civ 1374, [2009] QB 22 (a State seeking to recover antiquities belonging to its national heritage). See Whomersley CA, ‘Foreign States and British Courts’ (2009) 125 LQR 227233; A Scott, ‘The Non-justiciability of Foreign Sovereign Claims’ (2007) Lloyd's Maritime and Commercial Law Quarterly 296–301.

8 See S Fatima, Using International Law in Domestic Courts (Hart, Oxford, 2004).

9 Nonetheless, many of them have been allowed to proceed to a hearing and issues as a more generous approach to standing has been followed. There is a trend for standing to be considered as part of the legal and factual context of the whole case: see R (Al-Haq) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1910 (Admin) paras 47–48, 61–62 (denying a foreign NGO standing); R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (claimant was a peace activist opposed to the wider presence of UK and US armed forces in Afghanistan. Accepted that claim brought in the public interest). In the CND Case (n 108) the court, for the first time, made a pre-emptive costs order.

10 This has also been the case for example with some of the litigation in the US. See S Joseph, Corporations and Transnational Human Rights Litigation (Hart Publishing, London, 2004), 21–64.

11 Eg on State immunity with respect to alleged torture see Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270. See Tomonori M, ‘Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means’ (2008) 71 Modern Law Review 734752.

12 In Kuwait Airways Corporation v Iraq Airways Corporation [2002] 2 AC 883, at para 265, the CA stated that ‘the non-justiciability principle can only be understood in relation to earlier authority on the act of State doctrine, to which it is related’. In Attorney-General v Nissan, [1970] AC 179, Lord Wilberforce suggested that act of State included within itself two different conceptions or rules, one being justiciability. It prevented British municipal courts from taking cognisance of certain acts of the Crown which are done under the prerogative in the sphere of foreign affairs. On the differing rationales see Perreau-Saussine A, ‘British Acts of State in English Courts’ (2007) 78 BYIL 176254. Courts do not always distinguish between acts of State and non-justiciability, see Cane P, ‘Prerogative Acts, Acts of State and Justiciability’ (1980) 29 ICLQ 680700. See also Al-Jedda (No. 2) (n 199).

13 See M Shaw, International Law (6th edn, CUP, Cambridge, 2008) 179–92.

14 Justiciability in a court may differ from justiciability or arbitrability before an arbitral tribunal: The Republic of Serbia v Imagesat International NV [2009] EWHC 2853 (Comm), para 120 (noting the unavailability of sovereign immunity or act of State defences to a state which has agreed to submit a dispute to arbitration).

15 See G Marshall, ‘Justiciability’ in AG Guest (ed), Oxford Essays in Jurisprudence (OUP, Oxford, 1961); Ben-Naftali and Micheali (n 49); Mann (n 3) 63–83.

16 See CND Case (n 108); Mbasogo Case (n 7). Lack of jurisdiction because of immunity from suit (ie the action cannot be brought without the other party's consent) is a conceptually clearer category.

17 See CND case, text to (n 32) below, where the court refers to its ‘assumption of jurisdiction’.

18 See Tasarruf Mevduati Sigorta Fonu v Demirel [2006] EWHC 3354 (Ch); [2007] 2 All ER 815, para 62, per Lawrence Collins J.

19 See ID Leigh and RMW Masterman, Making Rights Real: the HRA in its First Decade (Oxford, Hart, 2008). ‘While the HRA remains in full force, Convention rights partake of the nature of what in other constitutional environments are considered to be entrenched rights’: Re Arthur's Application [2010] NIQB 75, para 31. On UK immigration rules as a source of justiciable rights, see Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, para 21.

20 See Green Paper on ‘Rights and responsibilities’ (UK. Department of Justice, Cm 7577), March 2009, ch. 4 (analysing possibilities in terms of the spectrum of justiciability) <http://www.justice.gov.uk/publications/docs/rights-responsibilities.pdf>; King JA, ‘The Justiciability of Resource Allocation’ (2006) 70 MLR 327–46.

21 See also Usman J, ‘Non-Justiciable Directive Principles: A Constitutional Design Defect’ (2007) 15 Mich St J International Law 643696.

22 Richards J in CND Case (n 108); similarly, Maurice Kay J. in the CND Case, para 50.

23 Per Maurice Kay J, ibid.

24 See Buttes Gas & Oil Co v Hammer (No.3), [1982] A.C. 888 at p. 932.

25 ibid 936.

26 On justiciability in the Australian constitutional context, particularly the suggestion that constitutional questions of executive power are arguably justiciable, see Hicks v Ruddock [2007] FCA 299. On developments in Australia, Canada and the US see Sim C, ‘Non-Justiciability in Australian Private International Law: A Lack of “Judicial Restraint”?’ (2009) 10 Melbourne Journal of International Law 102–40.

27 For an excellent example relying on a combination of rationales see R (Al-Haq) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1910 (Admin) (27 July 2009). See generally H Woolf, J Jowell and A Le Sueur, De Smith's Judicial (6th edn, Sweet and Maxwell, London, 2007) 15–26.

28 See Fallon RH Jr.Justiciability and Remedies—And Their Connections to Substantive Rights’ (2006) 92 Virginia Law Review 633705; Harbison JS, ‘Private Enforcement of Public Values in US Courts: Justiciability Barriers in Environmental Law’ (2001) 4 Environment Law Review 264281.

29 See Sir Anthony Clarke in Gentle, [2007] QB 689 at para 267; Cranston J. in Al-Haq (n 81) para 59; Lord Hoffman in Jones (n 192) para 65; Lord Bingham in A (FC) and others (FC) v Secretary of State for the Home Department, (Belmarsh Detainees Case), [2004] UKHL 56, [2005] 2 AC 68, para 42; R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409, [2008] ACD 70, discussed in Tucker AJ, ‘Legitimate Expectations and the Separation of Powers’ (2009) 125 LQR 233238.

30 See Al-Haq (n 81) para 55–57, per Cranston J; Roth GmbH v Secretary of State for Home Department [2002] EWCA Civ 158, para 85, per Laws LJ. See also King JA, ‘Institutional Approaches to Judicial Restraint’ (2008) OJLS 409–41, particularly at 420–423; Wiseman D, ‘The Charter and Poverty: Beyond Injusticiability’ (2001) 51 Univ Toronto LJ 421458.

31 US jurisprudence is partially framed in terms of ‘political questions’ which are assigned to the political branch. See Sarei v Rio Tinto, No. 02-56256, 487 F.3d (12 April 2007); Collins (n 3) 39–57. See also Gamogab v Akiba [2007] FCAFC 74 (18 July 2007) (Australian High Court divided on the non-justiciability of political questions); Sim (n 26).

32 CND Case (n 108) para 37. See also Collins L, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485510.

33 See JA King, ‘The Pervasiveness of Polycentricity’ (2008) Public Law 101–24.

34 Without which it is left in a ‘judicial no-man's land’, per Lord Wilberforce, Buttes Gas (n 24) 938. In Boris Berezovsky v The Russian Television and Radio Broadcasting Company, Vladimir Terluk, [2008] EWHC 1918 (QB) the court accepted a form of ‘non-justiciability’ argument to prevent a matter being litigated on a false footing, para 10. On the facts there was not sufficient evidence to establish this scenario. On the approach to manageable standards in Australia see Sim, (n 26).

35 See Laws LJ in Marchiori v The Environment Agency and Others [2002] EWCA Civ 03, [2002] Env LR 4 (non-justiciability of UK defence policies); Al-Rawi (n 150), (referring to the absence of ‘tools to evaluate’ decisions) Al-Haq (n 81) paras 55–57 (limits of judicial expertise). Questions of religious doctrine, traditions and practice are non-justiciable, His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Hardeel Singh [2010] EWHC 1294 (QB).

36 Kuwait Airways Corporation v Iraq Airways Corporation [2002] 2 AC 883, para 319, CA. On the approach in Australia to the question of executive embarrassment, see Sim (n 26).

37 A decision at this stage can encourage the settlement of the case.

38 Thus it has been said that non-justiciability, ‘is or leads to a form of immunity ratione materiae’, Kuwait Airways Corporation v Iraq Airways Corporation [2002] 2 AC 883, para 319, CA. It is not an immunity in the normal sense because it cannot be waived, though the effect might be the same if non-justiciability is not pleaded and the court does not take it up ex-officio. King (n 30) describes non-justiciability as ‘a rather nuclear option’ that ‘creates zones of legal unaccountability’, 421–422.

39 For US practice see D Akande, ‘The Act of State Doctrine in the United States’ <http://www.law.georgetown.edu/faculty/events/userfiles/file/IntlLegTheoColl/Akande%20Paper.doc>; Galloway RW, ‘Basic Justiciability Analysis’ (1990) 30(4) Santa Clara Law Review 911–34 (jurisprudence on justiciability can often be inconsistent, ad-hoc and results-oriented) 932.

40 See Buttes Case (n 24) at 931.

41 Aksionairnoye Obschestvo A. M. Luther v James Sagor & Co [1921] 3 KB 532 (effect was given to Russian laws vesting property in the Russian State).

42 See Oppenheimer v Cattermole [1967] AC 249 (n 85); Iraqi Airways Case (n 89).

43 See the examples cited above (n 7).

44 R (Abbasi & Anor.) v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department, [2002] EWCA Civ. 1598, [2003] UKHRR 76, para 85.

45 See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R v Secretary of State for Foreign Affairs ex p Rees-Mogg [1994] QB 552 (decision to ratify a treaty not reviewable); R v Secretary of State for Foreign & Commonwealth Affairs, ex parte Everett [1989] QB 811 (the refusal of a passport was reviewable); Abassi and Al-Rawi, below (on diplomatic representations); R (Bancoult) v Secretary of for Foreign and Commonwealth Affairs, [2008] UKHL 61, [2008] 4 All E.R. 1055 (on prerogative legislation). On developments in Australia see Horan C, ‘Judicial Review of Non-Statutory Executive Powers’ (2003) 31(3) Fed Law Rev 551572.

46 Per Maurice Kay J in CND Case (n 108).

47 See R (Greenpeace Ltd) v Secretary of State for Trade and Industry, [2007] EWHC 311, [2007] Env LR 29. Sullivan J stressed that in the development of policy in the environmental field consultation was no longer a privilege to be granted or withheld at will by the executive, para 49. See K Morrow, ‘On Winning the Battle But Losing the War’ (2008) Environment Law Review 65–71.

48 ‘… I see no reason in principle why, today, prerogative legislation, too, should not be subject to judicial review on ordinary principles of legality, rationality and procedural impropriety. Any challenge of that kind must, of course, be based on a ground that is justiciable’; Lord Rodger in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2008] 4 All E.R. 1055, para 105.

49 See Ben-Naftali O and Michaeli KR, ‘Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel's Policy of Targeted Killings’ (2003) 1 Journal of Int Criminal Justice 368405.

50 See Huntington v Attrill [1893] AC 150 at 155 per Lord Watson; Government of India v Taylor [1955] AC 491; Peter Buchanan Ltd v McVey [1955] AC 516; Brokaw v Seatrain [1971] 2 QB 476; Schemmer v Property Resources Ltd. [1975] Ch 273.

51 See generally Mikaelson C, ‘Derogating from International Human Rights Obligations in the “War Against Terrorism”-A British-Australian Perspective’ (2005) 17 Terrorism and Political Violence 131155.

52 [2004] UKHL 56, [2005] 2 AC 68. See Elliott M, ‘UK: Detention Without Trial and the “War on Terror”’ (2006) 4 International Journal of Constitutional Law 553566.

53 Although there were some misgivings, see eg Lord Bingham, para 26; Lord Scott, para 154.

54 See (n 52) para 29. The Grand Chamber of the European Court of Human Rights followed the majority of the House of Lords in holding that there had been a public emergency threatening the life of the nation, A and Others v the United Kingdom, Appn. No. 3455/05, (2009) 49 EHRR 29.

55 See Arden M, ‘Human Rights in the Age of Terrorism’ (2005) 121 LQR 604627. Legal characterization was similarly crucial in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 (housing legislation regulating surviving tenancies discriminatory on grounds of sexual orientation).

56 See S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP, Oxford, 2008) 92–123.

57 See Report of the UN Human Rights Council, UN Doc A/63/435, 28 November 2008. See also Mahon C, ‘Progress at the Front: The Draft Optional Protocol to the ICESCR’ (2008) 4 Human Rights Law Review 617–66.

58 See Lauterpacht H, ‘The Doctrine of Non-Justiciable Disputes in International Law’ (1928) 24 Economica 277317; Higgins R, ‘Policy Considerations and the International Judicial Process’ (1968) 17 ICLQ 5884; Coleman A, ‘The ICJ and Highly Political Matters’ (2003) 4 Melb JIL 2975. For rare references to justiciability in the European Court of Human Rights see Judge Zupančič in Sciarrotta and Guarino v Italy (2002) 35 EHRR 12 and Guisset v France (2002) 34 EHRR 47. The European Court may treat a finding of non-justiciability by a domestic court as a finding of fact for which it will not normally substitute its own assessment, see A.D and OD v UK, Appn. No. 28680/06, (2010) 51 EHRR 8, pr. 104.

59 See Re A (n 52) with respect to the existence of a public emergency. See P Daly, ‘Justiciability and the “Political Question” Doctrine’ (2010) Public Law 160–78.

60 [2008] UKHL 61; [2009] 1 AC 453. The case has now been brought before the European Court of Human Rights.

61 See M Cohn, ‘Judicial Review of Non-statutory Executive Powers after Bancoult: a Unified Anxious Model’ (2009) Public Law 260–86.

62 For severe criticism of the decision see M Elliott and A Perreau-Saussine, ‘Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power’ (2009) Public Law 697–722.

63 [2008] UKHL 61, paras 48–51, 107–09 and 127–30.

64 ibid para 109. Lord Hoffman also observed that, ‘Policy as to the expenditure of public resources and the security and diplomatic interests of the Crown are peculiarly within the competence of the executive’, ibid para 58. See also Lord Carswell on essentially political judgments, ibid para 130.

65 It was not claimed that national security made the issues non-justiciable.

66 [2008] EWHC 1409, [2008] ACD 70.

67 ibid para 37.

68 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

69 In any event the claimant had failed to satisfy the Court that the differences were immaterial and that the Lisbon Treaty was to be regarded as having equivalent effect to the Constitutional Treaty for the purposes of the putative implied representation as to the holding of a referendum, Wheeler, para 38.

70 ibid para 42. As the decision on the holding of a referendum lay with Parliament, it was for Parliament to decide whether the government should be held to any promise previously made.

71 ibid para 55. See also para 57 on relief. See also Rees-Mogg Case (n 45).

72 Buttes (n 24).

73 Per Lord Wilberforce, ibid 938.

74 AY Bank Ltd v Bosnia and Herzegovina and Others [2006] EWHC 830 (Ch), para 32.

75 R v Prime Minister of the United Kingdom, ex parte Campaign for Nuclear Disarmament [2002] EWHC 2777, para 57 per Simon Brown LJ. The correctness of this was left open in the AY Bank case, (n 120) para 50.

76 Kuwait Airways Corporation v Iraq Airways Corporation [2002] 2 AC 883, para 319, CA.

77 See (n 24).

78 Lord Wilberforce found that there were ‘no judicial or manageable standards by which to judge these issues’ and ‘the court would be in a judicial no-man's land’, 938b.

79 [2008] UKHL 20; [2008] 1 AC 1356.

80 ibid para 24, per Lord Hope. See also Lord Bingham, para 8.

81 [2009] EWHC 1910 (Admin).

82 Pill LJ, para 41, citing Lord Wilberforce in Buttes (n 24). It is submitted that alleged torture during a conflict might be justiciable because of the provision for prosecution in s. 134 Criminal Justice Act 1988.

83 Cranston J noted that that Israel would be entitled to State immunity before the UK courts and that the ICJ would have no jurisdiction to resolve a dispute concerning Israel's actions in Gaza without Israel's consent, para 52.

84 Kuwait Airways Corpn v Iraqi Airways Co (Nos. 5 and 6) [2002] 2 AC 883, 1101, per Lord Steyn. See also R v Secretary of State for the Home Department, Ex parte Launder (No 2) [1998] QB 994.

85 [1976] AC 249.

86 Per Lord Cross, 278. The consequence was that the decree did not deprive Oppenheimer of German nationality. However, it was later lost by a different method.

87 ibid.

88 ibid 282. Lord Pearson dissented on this issue.

89 [2002] UKHL 19, [2002] 2 AC 883.

90 Lord Scott dissented on the consequences with respect to the law of tort.

91 See JN Carruthers and EB Crawford, (2003) 52 ICLQ 761–74; Peel E, ‘The Scope of Double Actionability and Public Policy’ (2003) 119 LQR 108; Thomas (n 2).

92 See in particular Lord Hope on ‘Justiciability’ at paras 135–49. As a matter of private international law national courts have a discretion to refuse to apply a foreign law or enforce a foreign judgment on the grounds of inconsistency with public policy. Such a refusal makes no judgment about the validity of the law in its own legal system. See Mills A, ‘The Dimension of Public Policy in Private International Law’ (2008) 4 Journal of Private International Law 201236.

93 Per Buttes (n 24).

94 Iraqi Airways, HL, 1102 F. Cf the discussion of non-justiciable political questions and act of State in Sarei v Rio Tinto, No. 02-56256, 487 F.3d (12 April 2007), (the alleged acts of racial discrimination could not constitute official sovereign acts because they violated jus cogens norms). In the case the US Department of State asserted that continuation of the lawsuit ‘would risk a potentially serious adverse impact … on the conduct of [United States] foreign relations’. The decision was reheard on the issue of exhaustion of remedies.

95 ibid, per Lord Nicholls, para 26 and Lord Steyn, para 113, referring to ‘gross breaches of international law’. Few instances of the use of force between States would satisfy these descriptions but Iraq's invasion was as close to the paradigm case as imaginable. Lord Steyn noted that Iraq had accepted the illegality of the annexation and of Resolution 369, ibid 1101.

96 See (n 130).

97 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58; [2008] 1 AC 332, para 71.

98 Empresa Nacional de Telecommunications SA v Deutsche Bank AG [2009] EWHC 2579 (QB), [2010] 1 All. ER (Comm.) 649 (no rule of international law, whether in the nature of a human right or otherwise, that property could not be compulsorily acquired by a State without compensation, at least where there was no element of racial or religious discrimination involved, para 22).

99 [2009] EWHC 1910 (Admin) (27 July 2009).

100 In September 2009 a UN Mission of Inquiry published an extensive report evidencing grave violations of international human rights and humanitarian law and possible war crimes and crimes against humanity by both sides: see Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc A/HRC/12/48.

101 [2010] EWCA Civ 9. The UK government may express its view on public policy for the purpose of an EU Regulation but it cannot dictate it to the court, para 65, per Pill LJ. International obligations under treaties and SC Resolutions were limited to the realm of international governmental action and did not have any impact on private legal proceedings, per Lloyd LJ, para 116.

102 The (unadopted) Constitutional Renewal Bill [HL] 2008–09 made provision for Parliamentary approval before participating in war, international armed conflict, or international peace-keeping activities (Clause 24). Effectively the actions would have to be so against international law as not to be recognisably a decision of, or an Act of, Parliament at all. A theory of substantive competence has not yet developed in the UK. R v Horseferry Road Magistrates Court Ex p. Bennett (No.1), HL, [1994] 1 AC 42 suggests that lower level executive decisions might be tested against international law standards.

103 Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758 (Al-Jedda 2), para 178.

104 ibid para 174, per Elias LJ, concerning an Iraqi law which required judicial oversight of the detention of any person.

105 Of course the foreign State itself may be able to rely on State immunity under the State Immunity Act 1978.

106 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; R(KTHV and CTA) v Secretary of State for Transport and Republic of Cyprus [2010] EWCA Civ 1093, para 15. See Fatima (n 8) paras 8.5–8.7. In Re McKerr, [2004] UKHL 12, [2004] 1 WLR 807, Lord Steyn suggested that this approach might need to be reconsidered in light of the growing support for the view that human rights treaties enjoyed a special status, see paras 51–52.

107 Westland's Helicopters Ltd v Arab Organisation for Industrialisation [1995] QB 282, per Colman J.

108 [2002] EWHC 2777, [2003] ACD 36.

109 ibid paras 35–47, Simon Brown LJ.

110 ibid para 36.

111 R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756, Lord Bingham, para 44 and Lord Brown, paras 65–68.

112 Id, Lord Brown. In June 2009 the UK government decided that there would be an independent inquiry into the Iraq war, see <http://www.iraqinquiry.org.uk>

113 JH Rayner (n 106) 499–500, per Lord Oliver.

114 [2005] EWCA Civ 1116, [2006] QB 432, para 31. See O'Keefe R, ‘A Bit Justiciable’ (2006) 65 Cambridge Law Journal 259263 who suggested that the case ‘marks a further stage in the slow death of Buttes non-justiciability’, 263.

115 ibid para 41.

116 ibid para 47. Mance LJ noted that courts in other countries had also ‘exercised or assumed that it was open to them to exercise equivalent supervisory power to review the jurisdiction of arbitrators appointed under investment treaties’, citing Czech Republic v CME Czech Republic BV (2003) 42 I.L.M. 919 and Canada (Attorney General) v SD Myers Inc [2004] 3 FCR 368.

117 [2009] EWHC 2853 (Comm).

118 ibid paras 123–6, per Beatson J.

119 ibid paras 130–135.

120 [2006] EWHC 830 (Ch), [2006] 2 All ER (Comm) 463.

121 ibid para 57. This parallels the uncertainty in the area of national security as to whether such issues are non-justiciable or rather areas where substantial deference or weight is afforded to the views of the executive as a matter of relative institutional competence. See Part II, F above and Part III, G below. The modern trend seems to prefer the latter analysis.

122 ibid.

123 ibid para 54.

124 [2009] EWHC 1599 (Ch).

125 ibid para 62.

126 See Kuwait Airways Corpn v Iraqi Airways Co (Nos. 5 and 6) [2002] 2 AC 883 at paras 23 and 141; Al-Jedda 1 (n 197). There are explanations of those cases that do not rely on the justiciability of the SC resolutions as such.

127 Her Majesty's Treasury v Ahmed and Others [2010] UKSC 2, para 217. See also Tzanakopoulos (n 258).

128 See Abassi, CA, (n 106), at para 106(iii).

129 An aspect of this is that a state should not be considered to speak with two voices on a matter of foreign policy (or at least on a high act of policy), the judiciary saying one thing and the executive another. See British Airways Board v Laker Airways Ltd [1984] 1 QB 142, 193B-D, per Sir John Donaldson, M.R.; CND Case (n 108) para 43; Collins (n 32) 487–93; Al-Jedda (No 2), CA (n 200).

130 [2002] EWCA Civ. 1598, [2003] UKHRR 76. See Palmer S, ‘Arbitrary Detention in Guantanamo Bay: Legal Limbo in the Land of the Free’ (2003) 62 Cambridge Law Journal 69.

131 ibid para 25.

132 ibid para 26.

133 ibid para 64.

134 ibid para 66. On this point see now Rasul v Bush, 542 US 466 (2004).

135 In R (Hilali) v Westminster Magistrates' Court, [2008] EWHC 2892, the court stated that it was ‘difficult to conceive that our courts would grant relief against a foreign state if the alleged breach of human rights can be properly investigated and, where appropriate, redress given in the courts of that state’, ibid para 45. An alleged breach of the specialty rule came nowhere near engaging this exceptional jurisdiction against a foreign sovereign State.

136 Abassi (n 130) para 80.

137 ibid para 85.

138 ibid para 90.

139 ibid para 98.

140 ibid para 92.

141 ibid para 100.

142 ibid para 106.

143 ibid para 99.

144 ibid para 107.

145 On the litigation see T Otty, ‘Honour bound to defend freedom? The Guantanamo Bay litigation and the fight for fundamental values in the War on Terror’ (2008) EHRLR 433–453.

146 See Endicott (n 1) at 95–100. The CA in Abassi also rejected an enforceable duty to protect the citizen based on international law or on the ECHR, as incorporated by the HRA 1998, (n 130) para 106. The approach in Abassi was followed by the Constitutional Court of South Africa in Kaunda v The Republic of South Africa, (CCT 23/04), 2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (courts must give particular weight to the government's special responsibility for and particular expertise in foreign affairs). It was distinguished in a number of respects in Hicks v Ruddock [2007] FCA 299.

147 Endicott (n 1) 100.

148 See also Warbrick C, ‘Diplomatic Representations and Diplomatic Protection’ (2002) 51 ICLQ 723–33.

149 [2006] EWHC 972 (Admin), [2006] HRLR 30.

150 ibid para 27. In Evans (n 9) the court made clear that it was for the court to make its assessment of the risk, rather than to review the assessment made by the Secretary of State pr. 240.

151 Al-Rawi, CA (n 157) para 3.

152 ibid para 4.

153 Al Rawi, High Court, para 65.

154 Citing Abassi and the decision in R v Jones [2006] UKHL 16, [2006] 2 WLR 1424.

155 Al Rawi, High Court, para 90. See also paras 92–93.

156 ibid para 92.

157 R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA 1279, [2008] QB 289. He was subsequently returned to the UK in 2007. In August 2007 he joined a civil suit filed under the United States' Alien Tort Statute.

158 ibid para 120.

159 ibid paras 131–41.

160 ibid para 137.

161 ibid para 140.

162 ibid para 147.

163 Secretary of State for the Home Department v Rehman, [2001] UKHL 47, [2003] 1 AC 153, para 62.

164 Al-Rawi, CA, para 148.

165 [2009] EWHC 1910 (Admin) (27 July 2009).

166 ibid para 44.

167 Citing Jones, Gentle in the Court of Appeal, and Abbasi.

168 Al-Haq, para 46.

169 ibid para 41, citing Lord Wilberforce in Buttes Case (n 24).

170 cf Hicks v Ruddock [2007] FCA 299 where the Federal Court of Australia considered that the deprivation of H's liberty for over five years without valid charge was an even more fundamental contravention of a fundamental principle than in the Iraqi Airways Case, and was such an exceptional case as to justify proceeding to hearing, para 91.

171 ibid para 42. The UN Inquiry (n 100) was not a judicial inquiry. Quaere whether it might have been considered to represent an ‘authoritative judgment’ if the claim had been brought after it.

172 Per Cranston J. See also his comments questioning whether, in terms of modern constitutional law, customary international law should have any purchase in domestic law without specific transposition, ibid para 60. On whether customary international law rights would be justiciable as part of, or a source of, the common law see O'Keefe R, ‘The Doctrine of Incorporation Revisited’ (2008) 78 BYIL 785.

173 CND Case (n 108), paras 41–47, per Simon Brown LJ. Followed in Horgan v An Taoiseach, 132 ILR 407 (Irish High Court).

174 ibid para 47(b).

175 ibid para 50 (Maurice Kay J.).

176 ibid para 60.

177 W (Algeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 898.

178 RB (Algeria) (FC) v Secretary of State for Home Department [2009] UKHL 10, [2009] 2 WLR 512. Their reliability and effectiveness can be assessed, see Evans (n 9).

179 See e.g. the references to embarrassment in the Buttes (n 24), Iraqi Airways (n 89) and Mbasogo (n 7) cases.

180 ‘There could be no embarrassment to diplomatic relations in our taking this view’, per Lord Hope in Iraqi Airways Case (n 89) para 147.

181 Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG, Court of Appeal, [2008] EWCA Civ 1355, para 30.

182 ibid para 32.

183 [2009] EWHC 110 (Comm), [2009] 2 WLR 1332.

184 The state did not pursue that argument on appeal, see Republic of Argentina v NML Capital Limited [2010] EWCA Civ 41; [2010] 1 CLC 38. The appeal was allowed on other grounds.

185 CND Case (n 108) paras 41–47, per Simon Brown LJ.

186 [1985] AC 374. See also Chandler v DPP [1964] AC 763.

187 ibid 418, per Lord Roskill.

188 ibid. In the United States the conduct of military operations is ‘so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference’: Harisiades v Shaughnessy, 342 US 580, 589 (1952). See also Arar v Ashcroft, 585 F 3 d 559, 590 (2d Cir 2009) on whether the judiciary should create a cause of action for extraordinary rendition.

189 Though with respect to the disposition of forces within the UK the Civil Contingencies Act (2004) may have superseded any prerogative powers.

190 R (Abbasi & Anor) v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department, [2002] EWCA Civ. 1598, [2003] UKHRR 76, at para 106(iii).

191 [2006] UKHL 16, [2007] 1 AC 136. See Capps P, ‘The Court as Gatekeeper: Customary International Law in English Courts’ (2007) 70(3) Modern Law Review 458471 (‘the House had to jettison the principle by which customary international law automatically gives rise to equivalent justiciable standards under English law’, 458).

192 See ND White, ‘International Law, the UK and Decisions to Employ Troops Overseas’ (2010) ICLQ 814–823.

193 Per Lord Bingham, para 30. See Part II, B–D above.

194 Lord Hoffman, ibid para 67. See Capps (n 192) 470.

195 Members of the forces may enjoy a limited degree of protection under the HRA (1998), see R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2010] 3 WLR 223.

196 [2007] UKHL 58; [2008] 1 AC 332.

197 [2009] EWHC 397 (QB).

198 ibid paras 34–37. The Buttes case (n 24) was distinguished as being of a wholly different character.

199 [2010] EWCA Civ 758.

200 ibid paras 70–75 (Arden LJ), 184–91 (Elias LJ).

201 Distinguishing Buck v Attorney-General [1865] Ch. 745 (issue in case non-justiciable because it would call into question the terms of the Constitution of a foreign sovereign State).

202 [2009] EWHC 397 (QB), para 75.

203 [1970] AC 179.

204 [2009] EWHC 397, QB, para 76. R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 A.C. 153 was distinguished as being only concerned with the specific question of the territorial reach of the ECHR and of the HRA (1998). The court also rejected an argument that it would be an abuse for the Secretary of State to be able to rely on the defence of act of state. It had not been pleaded in the earlier Al-Jedda case (n 197) or in Al-Skeini.

205 ibid para 76. Though act of State defence would, ‘plainly be unavailable in cases of wanton or unjustified violence’, ibid para 85.

206 ibid para 77.

207 ibid paras 80–82. This important issue had been discussed in the Nissan Case but had been left undecided.

208 ibid para 87.

209 Al Jedda 2, CA (n 199) paras 75, 195.

210 In December 2007 the Secretary of State made an order depriving him of his British citizenship. The order has been challenged: see Al-Jedda v Secretary of State for the Home Department [2010] EWCA Civ 212.

211 Sir John Dyson preferred to express no view on the act of State issue which raised points of ‘very considerable difficulty’, para 127.

212 ibid para 109.

213 ibid paras 93–110.

214 ibid paras 192–226.

215 ibid para 218.

216 Marchiori v The Environment Agency & Others [2002] EWCA Civ 03, per Laws LJ.

217 See (n 224). Similarly with respect to the detention of an individual, even in another state, see Evans (n 9).

218 Marchiori (n 217). M's application was in respect of certain authorizations granted by the Environment Agency which permitted the discharge of radioactive waste by contractors from two nuclear sites at which Trident nuclear warheads were manufactured.

219 ibid para 39.

220 ibid paras 46–48. In January 2009, Scott Baker LJ refused permission to appeal a decision not to grant permission to claim judicial review of the Government's 2006 Defence White Paper and its decision to renew the Trident nuclear weapons system: R (Nuclear Information Service) v Secretary of State for Defence and Secretary of State for the FCO (unreported).

221 R v Shayler, [2002] UKHL 11; [2003] 1 AC 247, per Lord Bingham, para 33.

222 ibid.

223 [2001] UKHL 47, [2003] 1 AC 153.

224 See Lord Slynn, ibid, para 26 and Lord Steyn, paras 28 and 31.

225 National security considerations will prevail over common law rights if Parliament has clearly confronted the issues and so decided: W (Algeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 898.

226 [2004] UKHL 56; [2005] 2 AC 68. On assessing national security in the context of a fair trial see Secretary of State for the Home Department v F [2009] UKHL 28; [2009] 3 WLR 74; A v United Kingdom (n 54); Secretary of State for the Home Department v AF [2010] EWHC 42 (Admin); Al Rawi v Security Service [2010] EWHC 1496 (QB) and [2010] EWCA Civ 482.

227 [2008] UKHL 60, [2009] 1 AC 756.

228 ibid para 64.

229 ibid 46–47, 51, 56, 67, 68–69.

230 See (nn 60–65).

231 [2007] EWCA Civ 498, [2008] QB 365.

232 The approach of Lords Rodger and Carswell has been criticised for being ‘infused … with deference verging on a characterization of the matter as a non-justiciable one’, Elliott and Perreau-Saussine (n 62) 716.

233 Bancoult, para 109, per Lord Rodger.

234 See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152, paras 72–107, [2009] 1 WLR 2653. See also Pt III, F above.

235 ibid.

236 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2010] 3 WLR 554. In 2011 the government will publish a Green Paper ‘seeking views on a range of options designed to enable the courts and other oversight bodies to scrutinise modern day national security actions without effectively compromising our security in the process’, National Security Strategy Oct 2010, Civ 7593, 23.

237 So too in Australia: see Hicks v Ruddock [2007] FCA 299 (modern law in relation to the meaning of ‘justiciable’ and the extent to which the court will examine executive action in the area of foreign relations and Acts of State was far from settled, black-letter law', para 95). See also Mbasogo and Barakat (n 7) in which the critical element seems to be whether it is considered to be the extra-territorial assertion of sovereign prerogative rights by a foreign State, with the courts finding positive reasons of policy to support claims made by foreign States concerning their public laws.

238 See Woolf et al (n 27) 15.

239 See R (Al-Sweady and Others) v Secretary of State for Defence [2009] EWHC 2387 (Admin) (eg on allowing cross-examination of witnesses and disclosure especially as they concern human rights complaints which involve factual disputes) where the Court made withering criticism of the Secretary of State's failures in terms of proper disclosure. See also Evans (n 9) on the use of special advocates and closed judgments and the suggestion of Elias LJ in Al-Jedda (No. 2), (n 200) on judicial review as an alternative to tort. See generally T Hickman, Public Law after the Human Rights Act (Hart, Oxford, 2010).

240 See eg Ali Zaka Mousa and others v Secretary of State for Defence, [2010] EWHC 1823 (Admin) (application on behalf of 102 men claiming ill-treatment while detained in Iraq). Two inquiries (Baha Mousa and Al-Sweady) and two investigations (the Iraq Historic Allegations Team and the Iraq Historic Allegations Panel) have already been established.

241 ‘In the future, … domestic non-justiciability may not withstand the pressure, especially in relation to human rights cases, for executive acts in foreign affairs to be judicially reviewed by the standards of public international law’: Thomas (n 2) 398.

242 See Lord Justice Richards, ‘The International Dimension of Judicial Review’ (2006) <http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm>

243 See A Kavanagh, Constitutional Review under the UK Human Rights Act (CUP, Cambridge, 2009).

244 This may be enhanced now the UK formally has a Supreme Court (since October 2009). See Lord Hope, ‘The Creation of the Supreme Court—was it worth it?’ (2010) available at <http://www.supremecourt.gov.uk/docs/speech_100624_v2.pdf>.

245 See also A v The Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221 (prohibition on admission of evidence derived from torture); R (C) v Upper Tribunal [2010] EWCA Civ 859 (referring to the constitutional role of the High Court as the guardians of standards of legality, para 35); Bingham Lord, ‘The Rule of Law’ (2007) 66 CLJ 6785. The doctrine now has legislative support in The Constitutional Reform Act (2005).

246 See D McGoldrick, ‘Terrorism and Human Rights Paradigms—The UK After 11 September 2001’, in A Bianchi and A Keller (eds), Counterterrorism: Democracy's Challenge (Hart, Oxford, 2008) 111–231. Quaere how far the UK judiciary is from developing a theory of substantive competence.

247 The Constitutional Renewal Bill [HL] 2008–09 made provision for treaties to be laid before Parliament before ratification (Clauses 20–23).

248 Dunn, Re Judicial Review [2010] NIQB 54 (29 April 2010), para 18, citing Lewis v Attorney General of Jamaica [2001] 2 AC 50 (Privy Council).

249 Daly (n 59) 168.

250 cf Akande (n 39) on the proper basis of act of State.

251 See Part II, C above.

252 See Kavanagh (n 244) 167–268; ibid, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) LQR 222–250, particularly at 240–243; King (nn 20 30); Hickman (n 240) 57–97, 128–172. Canada has moved away from non-justiciability and towards a merits-based approach: see Operation Dismantle [1985] 1 SCR 441 (the Court had a constitutional obligation under the Canadian Charter of Rights and Freedoms to decide whether any particular act of the executive violated or threatened to violate any right of the citizen). See also Sim (n 26) who submits that there are ‘strong reasons to doubt the desirability of the doctrine of non-justiciability’.

253 See J Jowell, ‘Democratic Necessity of Administrative Justice’ (2006) Acta Juridica 13–22. The case for acts of foreign States not taking place in the UK and not in the dominium area (ordinary contract or property) being the subject of litigation in the UK is weaker in domestic constitutional terms.

254 See Hickman (n 240) 81–89; Harris BV, ‘Government “Third Source” Action and Common Law Constitutionalism’ (2010) 126 LQR 373402.

255 See Endicott (n 1); T Bingham, The Rule of Law (London, Allen Lane, 2010) 110–129.

256 See Laws LJ, text to (n 153).

257 See A Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’ in A Reinisch (ed), Challenging Acts of International Organizations Before National Courts (OUP, Oxford, 2010) 54–76.

258 See Cardwell PJ, French D and White ND, ‘Kadi v Council of the European Union’ (2009) 58 ICLQ 1 229240.

259 See de Wet E, ‘The International Constitutional Order’ (2006) 55 ICLQ 1 5376; Benvenisti E, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 AJIL 241–74.

I am grateful to Colin Warbrick and John Bell for their comments on earlier drafts. Responsibility for the views expressed is mine alone.

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International & Comparative Law Quarterly
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