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REVIEW OF EXECUTIVE ACTION ABROAD: THE UK SUPREME COURT IN THE INTERNATIONAL LEGAL ORDER

Published online by Cambridge University Press:  28 January 2019

Andrew Sanger
Affiliation:
University Lecturer in International Law and Fellow of the Lauterpacht Centre for International Law, University of Cambridge; Fellow of Corpus Christi College, Cambridge, as662@cam.ac.uk.
Corresponding
E-mail address:

Abstract

In January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2019 

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Footnotes

I am grateful to David Feldman, Lawrence Hill-Cawthorne and Odette Murray for their valuable comments on an earlier draft.

References

1 Art 5(1), European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222 (ECHR).

2 The UK thus exercised ‘control and authority’ over the detainees: Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 137. Al-Skeini was applied in the case of Al-Jedda v United Kingdom (2011), where the UK argued that UNSC resolution 1546 imposed an obligation on member States to detain and that this obligation must, pursuant to art 103 of the UN Charter, prevail over art 5(1) ECHR. The Grand Chamber rejected this argument on the basis that the resolution merely authorized—and did not oblige—States to intern enemy fighters. In Serdar Mohammed, Lord Sumption was critical of Al-Skeini, noting that it ‘gives rise to serious analytical and practical difficulties, when applied to a state's treatment of enemy combatants outside its own territory, because the practical effect is to apply the Convention to any extra-territorial exercise of force … . It requires the application of the Convention to the conduct of military operations for which it was not designed and is ill-adapted …’: Serdar Mohammed v Ministry of Defence [2017] UKSC 2, para 48.

3 ISAF was a multinational force under NATO command that was deployed in Afghanistan with the consent of the Afghan Government and pursuant to a UN Security Council mandate.

4 Memorandum of Understanding between UK and Afghanistan (23 April 2006) para 3.1. Published by the Select Committee on Foreign Affairs of the House of Commons (10 July 2007) <https://publications.parliament.uk/pa/cm200607/cmselect/cmfaff/44/4412.htm>.

5 ISAF Standard Operating Procedures 362, para 5. Detention could be extended beyond 96 hours on the authority of the ISAF commander or his/her delegate where ‘it is deemed necessary in order to effect [the detainee's] release or transfer in safe circumstances’, or where there were logistical difficulties securing release/transfer within the 96-hour period: para 8. Importantly, this exception ‘is not authority for longer-term detentions but is intended to meet exigencies such as that caused by local logistical conditions’ (ibid).

6 On 9 November 2009, it was announced in Parliament that ‘in the majority of cases, UK forces will operate [in accordance with ISAF policy]’ but that where 96 hours was not long enough to obtain ‘mission crucial’ intelligence, ‘Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access’: Written Statement, The Secretary of State for Defence (Mr Bob Ainsworth), 9 November 2009, Hansard, cols 31–2. Other States also adopted their own detention policies that departed from the ISAF policy: the USA did so via domestic legislation, while Canada entered into an agreement with the Afghan Government: Serdar Mohammed, para 341.

7 Serdar Mohammed was convicted and sentenced to ten years imprisonment.

8 At a pre-trial review, it was common ground that the judge and the Court of Appeal would be bound to dismiss his art 5 claim by the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332 (art 5(1) ECHR was displaced by the UN Security Council resolutions authorizing military operations in Iraq). Leggatt J therefore granted a leap-frog appeal directly to the Supreme Court.

9 For arguments that IHL does provide authorization for detention in NIACs, see Gill, TD and Fleck, D, The Handbook of the International Law of Military Operations (3rd edn, Oxford University Press 2017) 524Google Scholar; Pejic, J, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 International Review of the Red Cross 375, 377CrossRefGoogle Scholar; Aughey, S and Sari, A, ‘Targeting and Detention in Non-International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence’ (2015) 91 International Law Studies 60Google Scholar; and Murray, D, ‘Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward’ (2017) 30 LJIL 435, 448CrossRefGoogle Scholar. See also the ICRC's 2014 Opinion Paper on ‘Internment in Armed Conflict: Basic Rules and Challenges’ 7–8; and Pejic, J, ‘The Protective Scope of Common Article 3: More than Meets the Eye’ (2011) 93 International Review of the Red Cross 189, 207CrossRefGoogle Scholar. For arguments that IHL does not provide a legal basis for detention in NIACs, see Rona, G, ‘An Appraisal of US Practice Relating to “Enemy Combatants”’ (2007) 10 YIHL 232, 241CrossRefGoogle Scholar; Rowe, P, ‘Is There a Right to Detain Civilians by Foreign Armed Forces During a Non-International Armed Conflict?’ (2012) 61 ICLQ 697CrossRefGoogle Scholar; Sivakumaran, S, The Law of International Armed Conflict (Oxford University Press 2012) 71Google Scholar; L Hill-Cawthorne and D Akande, ‘Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts? EJIL Talk! (7 May 2014) and ‘Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari’ EJIL Talk! (2 June 2014); Rona, G, ‘Is There a Way Out of the Non-International Detention Dilemma? (2015) 91 International Law Studies 32, 34ffGoogle Scholar; Conte, A, ‘The Legality of Detention in Armed Conflict’ in Bellal, A (ed), The War Report: Armed Conflict in 2014 (Oxford University Press 2015) 492–8Google Scholar; Hill-Cawthorne, L, Detention in Non-International Armed Conflict (Oxford University Press 2016) Ch 3Google Scholar.

10 [2014] EWHC 1369 (QB) (Leggatt J), paras 239–253; [2015] EWCA Civ 843 (CA(Civ)), paras 207–212, 214–219 (CA) (although noting that the argument was ‘undoubtedly a powerful one’: para 214). See also R Goodman, ‘The Detention of Civilians in Armed Conflict’ (2009) 103 AJIL 48, 55–6.

11 [2014] EWHC 1369 (QB) (Leggatt J), paras 254–256; [2015] EWCA Civ 843 (CA(Civ)), paras 220–244.

12 Serdar Mohammed, para 274. See the textual arguments (paras 260–261), the contextual arguments (paras 262–263), the arguments against inferential reasoning (paras 264–267) and the arguments based on the absence of adequate protection against arbitrary detention (paras 268–270).

13 ibid, para 275 (‘I have not been persuaded that there exists at present either sufficient opinio juris or a sufficiently extensive and uniform practice to establish the suggested rule of customary international law.’)

ibid

14 ibid, para 276.

ibid

15 ibid, paras 235, 274–275.

ibid

16 ibid, para 14 (Lord Sumption).

ibid

17 In this respect, Lord Sumption appeared to write for the majority on this issue: Lady Hale explicitly agreed with Lord Sumption (ibid, para 14); Lord Mance states that he is ‘closer on this issue to Lord Sumption's than to Lord Reed's’ (ibid, para 148); Lord Wilson (ibid, para 113), Lord Hughes (with whom Lord Neuberger agreed; ibid, para 224) and Lord Toulson (ibid, para 231) also appear to have agreed with Lord Sumption. Lord Hodge was not involved in this part of the appeal.

18 See, eg, Hill-Cawthorne, L, Detention in Non-International Armed Conflict (Oxford University Press 2016) Ch 3Google Scholar.

19 ibid and UK Ministry of Defence, Manual on the Law of Armed Conflict (Oxford University Press 2004) 403Google Scholar.

ibid

20 Serdar Mohammed, para 16.

21 ibid.

ibid

22 ibid, paras 148–151.

ibid

23 Lauterpacht, H, Decisions of Municipal Courts as a Source of international Law (1929) 10 BYBIL 6595Google Scholar; Kanetake, M, ‘The Interfaces between the National and International Rule of Law: A Framework Paper in the Rule of Law at the National and International Levels’ in Kanetake, M and Nollkaemper, A (eds), The Rule of Law at the National and International Levels: Contestations and Deference (Hart Publishing 2016) 1Google Scholar.

24 In particular, draft Conclusion 13 and the Second Report dated 22 May 2014.

25 Serdar Mohammed, para 148.

26 In other words, States may be responsible in international law for the conduct of their courts: see, eg, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ Rep 2012, at 99, 145 (para 107).

27 Serdar Mohammed, para 148.

28 See also Jones v Saudi Arabia [2016] UKHL 26, para 63, in which Lord Hoffmann explains that ‘[i]t is not for a national court to ‘‘develop’’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’.

29 Serdar Mohammed, para 14.

30 Res 1890 (2009) extended the mandate originally conferred by Res 1386 (2001), which authorized ‘member states participating in [ISAF] to take all necessary measures to fulfil [ISAF's] mandate’ (art 3).

31 Res 1723 (2006) extended the authority granted in Res 1546 (2004) to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution’. The attached letters included a letter dated 5 June 2004 from the US Secretary of State, which expressed the willingness of the United States to deploy forces to maintain internal security in Iraq. The letter went on to note that activities for the maintenance of security would include ‘internment where this is necessary for imperative reasons of security’ (Serdar Mohammed, para 19).

32 Lord Sumption, with whom Lady Hale agreed (ibid, paras 27–30) (‘if detention is ‘‘imperative’’ for reasons of security, it must be ‘‘necessary’’ for the performance of the mission’); Lord Wilson (para 119, agreeing with Lord Sumption); Lord Mance (paras 152–164, 168); Lord Hughes, with whom Lord Neuberger agreed (para 224, agreeing with the judgments of Lord Mance, Lord Wilson and Lord Sumption); Lord Toulson (para 231, agreeing with the judgments of Lord Mance, Lord Wilson and Lord Sumption); Lord Reed, with whom Lord Kerr agreed (para 233, agreeing in part with the conclusions reached by Lord Sumption). Lord Hodge was not involved in this part of the appeal. As with the Court of Appeal but contrary to Leggatt J in the High Court, Lord Sumption agreed that this authorization to detain was not limited to a short period of time: para 29.

33 Lord Mance noted that the resolutions were ‘replete with reference to ISAF acting and being authorised to act’ and that to hold otherwise would have meant that member States were authorized to act independently of ISAF and each other, which would have been ‘a recipe for confusion and unlikely to have been intended by the Security Council’. ibid, para 180.

34 Lord Sumption concluded that ‘ISAF is simply the expression used in the Resolutions to describe the multinational force and the central organization charged with coordinating the operations of its national components’, but it was ‘not authorised, nor did it purport to serve as the delegate of the Security Council for the purpose of determining what measures should prove necessary.’ ibid, para 38.

35 Lord Wilson stated that ‘ISAF was no more than an umbrella body, which had no independent personality in law, international or otherwise’; moreover, the authority to take all necessary measures ‘was qualified: it was not to take all such necessary measures as ISAF might identify’. ibid, para 120.

36 Although Lord Hughes doubted if it was necessary to express a concluded view on the matter, ‘subject only to observing that the authority to troop-contributing member nations is clearly premised on mutual co-operation although not on precise identity of polices, I presently prefer the analysis of Lords Sumption and Wilson’. ibid, para 226.

37 ibid, para 186; Lord Sumption agreed: para 39.

ibid

38 See Al-Jedda v United Kingdom, para 100; Ireland v the United Kingdom (18 January 1978) Series A No 25, para 196.

39 Serdar Mohammed, paras 59–63.

40 ibid, paras 61, 65.

ibid

41 ibid, para 67.

ibid

42 ibid, para 133 (Lord Wilson).

ibid

43 ibid, para 132 (Lord Wilson).

ibid

44 ibid, para 68(3).

ibid

45 ibid.

ibid

46 Lord Reed agreed with Lord Sumption on this point.

47 Serdar Mohammed, para 15: ‘whether or not it represents a legal right, detention is inherent in virtually all military operations of a sufficient duration and intensity to qualify as armed conflicts, whether or not they are international’, per Lord Sumption.

48 See, on this point, the argument that the Court erroneously conflated jus in bello and jus ad bellum: A Habteslasie, ‘Detention in Times of War: Article 5 of the ECHR, UN Security Council Resolutions and the Supreme Court Decision in Serdar Mohammed v Ministry of Defence’ (2017) EHRLR 180.

49 Detention must comply with the principle of legal certainty to be compatible with art 5 ECHR: see, eg, Baranowski v Poland (28 March 2000) App No 28358/95, para 52. See also European Court of Human Rights, Guide on Article 5 of the European Court of Human Rights, updated 30 April 2018, paras 31–32.

50 Medvedyev v France (29 March 2010) App No 3394/03, para 99.

51 ibid.

ibid

52 ibid, para 100 (emphasis added).

ibid

53 Although in a partially dissenting opinion, Judge Costa et al. point out that ‘it is scarcely possible to dissociate the crew from the ship itself when a ship is boarded and inspected on the high seas. The actions expressly authorized by Cambodia (interception, inspection, legal action) necessarily concerned the crew members’: Joint Partly Dissenting Opinion of Judges Costa, Casadevall, Bîrsan, Garlicki, Hajiyev, Šikuta and Nicolaou, para 7.

54 A Habteslasie, ‘Detention in Times of War’ (n 48) 180, 190.

55 See paras 9–10 of Res 1546 (2004), and preamble and para 1 to Res 1723 (2006).

56 Letter dated 19 December 2001 from Dr A Abdullah, Acting Minister for Foreign Affairs of the Islamic State of Afghanistan to the President of the Security Council, S/2001/1223.

57 See (n 4) above.

58 1155 UNTS 331 (23 May 1969) entered into force 27 January 1980.

59 Buga, I, Modification of Treaties by Subsequent Practice (Oxford University Press 2018) 149Google Scholar.

60 ibid 62. Kasikili/Sedudu Island (Botswana/Namibia), ICJ Rep 1999, 1094, para 74 (‘[t]o establish such practice, at least two criteria would have to be satisfied: first, that the occupation of the Island by the Masubia was linked to a belief on the part of the Caprivi authorities that the boundary laid down by the 1890 Treaty followed the southern channel of the Chobe; and, second, that the Bechuanaland authorities were fully aware of and accepted this as a confirmation of the Treaty boundary’.).

ibid

61 Hassan v United Kingdom, para 102.

62 Serdar Mohammed, para 310.

63 ibid, para 311, referring to statements by Germany, the Netherlands and Switzerland.

ibid

64 I Buga, (n 59), Ch 3; Sorel, J-M and Eveno, V, ‘Article 31’ in Corten, O and Klein, P (eds), The Vienna Conventions on the Law of Treaties: A Commentary, vol 1 (Oxford University Press 2011) 825–9Google Scholar.

65 See Partly Dissenting Opinion of Judge Spano Joined by Judges Nicolaou, Bianku and Kalaydjieva, Hassan v United Kingdom, at 59, para 13.

66 See also L Hill-Cawthorne, ‘The Grand Chamber Judgment in Hassan v UK’ EJIL Talk! (16 September 2014).

67 Hassan v United Kingdom, para 104 (emphasis added).

68 ibid, para 105.

ibid

69 Serdar Mohammed, para 25. See also para 23: ‘[m]easures taken under Chapter VII of the United Nations Charter are a cornerstone of the international legal order’.

70 ibid, para 298.

ibid

71 Al-Jedda v United Kingdom, para 105. Al-Jedda concerned the questions whether there was a conflict of obligations between art 5(1) and the authority to detain inferred from UNSC Res 1546, and if so, whether art 103 of the UN Charter meant that the resolution must prevail to the extent that it conflicted with art 5(1). The Grand Chamber concluded that the authority under Res 1546 to detain in a NIAC in Iraq was not an obligation, and in so doing explained that ‘there must be a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council resolution, the court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations … [I]t is to be expected that clear and explicit language would be used were the Security Council to intend states to take particular measures which would conflict with their obligations under international human rights law.’ Al-Jedda v United Kingdom, para 102.

72 Serdar Mohammed, para 299.

73 ibid, paras 313–314.

ibid

74 ibid, para 296; and paras 307–316, 324.

ibid

75 ibid, para 161.

ibid

76 ibid, para 162.

ibid

77 See, eg, T Allan, The Sovereignty of Law (2013) Ch 4 and 5; J Laws, ‘Law and Democracy’ (1995) PL 72.

78 See, eg, Thoburn v Sunderland City Council [2003] QB 151, 186–87, para 63 (per Laws LJ); R v Secretary of State for the Home Dept, ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann). See also Regina (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61, para 83.

79 Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3.

80 In what is arguably an overstatement, Lady Hale and Lord Clarke also observed that Lords Mance and Neuberger had reached the same conclusions ‘for essentially the same reasons’: ibid, para 174.

81 ibid, para 31.

ibid

82 ibid, para 196.

ibid

83 ibid, para 30.

ibid

84 ibid, paras 35 (Lord Mance: ‘a well-established rule of private international law, according to which a foreign state's legislation will be recognized and normally accepted as valid, in so far as it affects property, whether movable or immovable, situated within that state when the legislation takes effect’) and 150 (Lord Neuberger).

ibid

85 ibid, paras 11(iv)(a), 35 (Lord Mance: ‘[i]t may be regarded, like the first type of act of state, as a rule of private international law—though this can hardly be in a literal conflicts of “laws” sense since the effect of the relevant act is determined not by law, but regardless of law… it can, so far as it exists, just as well be understood as a special rule of abstention’), 73, 121, 136–143, 150 (Lord Neuberger: ‘[t]o the extent that it exists, the second rule also seems to me to be a general principle, and, at least to some extent, it may be close to being a general principle of private international law’).

ibid

86 ibid, paras 74, 79–80, 83, 159–162.

ibid

87 ibid, paras 78–84, 169.

ibid

88 ibid, para 228; see generally paras 228–238.

ibid

89 ibid, para 231 (‘there is no rational reason why the principle should be limited to executive seizures of property, as opposed to injury to other interests equally protected by the municipal law of the place where they occurred’).

ibid

90 ibid, para 233.

ibid

91 ibid, paras 249–285.

ibid

92 ibid, para 225 (‘[l]ike any other organ of the United Kingdom, the courts must respect the sovereignty and autonomy of other states. This marks the adoption by the common law of the same policy which underlies the doctrine of state immunity.’).

ibid

93 ibid, para 225.

ibid

94 ibid, paras 101 (Lord Mance), 123 (Lord Neuberger), 237 (Lord Sumption).

ibid

95 ibid, paras 40–42, 62–63, 90–95 (Lord Mance); 123, 129, 133–134 (Lord Neuberger), 175, 225–226, 239, 243, 245 (Lord Sumption).

ibid

96 ibid, paras 98 (Lord Mance), paras 151, 158 (Lord Neuberger) and 200 (Lord Sumption).

ibid

97 ibid, para 91.

ibid

98 ibid, para 43, citing Shergill v Khaira [2015] AC 359, paras 41–44. An example of the second category is R (Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24.

ibid

99 ibid. In an article published in this journal, Lord Mance noted that ‘[s]peaking generally, it is unusual for civil claims or defences to involve such a foothold. In contrast, public law claims for judicial review have proved increasingly to do so’: Mance, Lord, ‘Justiciability’ (2018) 67 ICLQ 739, 743CrossRefGoogle Scholar.

ibid

100 Belhaj para 91, noting also at para 89 that ‘[t]he Court of Appeal explained the principle [of non-justiciability or abstention] as founded on the sovereign equality of states and comity’.

101 ibid, para 123.

ibid

102 ibid, para 123, also referring to Shergill v Khaira [2015] AC 369, paras 40, 42.

ibid

103 Although Lords Mance and Sumption considered that the difference between them on this issue was not critical: ibid, paras 89, 249.

104 ibid, para 97.

ibid

105 ibid, para 147.

ibid

106 ibid, para 167 (‘[t]here is no suggestion that there was some sort of formal or high-level agreement or treaty between any of the states involved which governed the cooperation between the executives of the various countries concerned … the mere fact that officials of more than one country cooperate to carry out an operation does not mean that the third rule can be invoked if that operation is said to give rise to a claim in domestic law’).

ibid

107 ibid, paras 168-172.

ibid

108 ibid, para 234.

ibid

109 ibid, para 234.

ibid

110 ibid, para 237.

ibid

111 ibid, para 240, referring to WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International (1990) 493 US 400.

ibid

112 ibid, paras 238 (‘[i]n Rahmatullah, they were exercises of governmental authority by the armed forces and officials of the United States, acting as an occupying power in Iraq and a mandatory power in Afghanistan. In Belhaj, the claimants’ rendition from Thailand to Libya and their mistreatment in the process was also an exercise by the United States of governmental authority… Whatever one may think of the lawfulness or morality of these acts, they were acts of state performed outside the territorial jurisdiction of the United States, which cannot be treated by an English court as mere private law torts, any more than drone strikes by US armed forces can’) and 242 (‘the question whether the acts alleged against the relevant foreign states were unlawful is not incidental. It is essential to the pleaded causes of action against the defendants’).

ibid

113 ibid, para 278.

ibid

114 ibid, para 280.

ibid

115 ibid, paras 41, 132, 148–149, 241 (the doctrine has ‘never been directed to the avoidance of embarrassment, either to foreign States or to the United Kingdom government in its dealing with them’). In his well-known speech in Buttes Gas, Lord Wilberforce left aside ‘all possibility of embarrassment in our foreign relations’; however, he also stated that the Government had not drawn to the attention of the House any indication of embarrassment: [1982] AC 888, 938. See also Yukos Capital Sarl v OJSC Rosneft Oil Co [2012] EWCA Civ 855; [2014] QB 458, 485 para 65; and R (Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872. See also FA Mann, Foreign Affairs in English Courts (OUP 1986) 182.

ibid

116 ibid, para 149.

ibid

117 ibid, para 41.

ibid

118 ibid, paras 105 (‘I would not exclude the relevance to justiciability of a clear government indication as to the real and likely damage to United Kingdom foreign policy or security interests’) and 149 (although the court could not ‘be bound to refuse to determine an issue… there is a more powerful argument for saying that such a statement should be a factor which the court should be entitled to take into account when deciding whether to refuse to determine an issue’).

ibid

119 ibid, para 133.

ibid

120 ibid, para 134.

ibid

121 ibid, para 57.

ibid

122 Araya v Nevsun Resources Ltd, 2017 BCCA 401.

123 Young v Attorney-General [2018] NZCA 307 (13 August 2018).

124 The Saharawi Arab Democratic Republic et al. v The Owner and Charterers of the MV ‘NM Cherry Blossom’ et al., Case No 1487/17 (15 June 2017).

125 See Benvenisti, E and Downs, GW, Between Fragmentation and Democracy: The Role of National and International Courts (Cambridge University Press 2017) Ch 5CrossRefGoogle Scholar.

126 Belhaj, paras 7, 98 (Lord Mance), 118, 146, 151, 158 (Lord Neuberger), 200, 261 (Lord Sumption).

127 ibid, para 200.

ibid

128 ibid, para 91 (Lord Mance: ‘[c]onsiderations of powers and of the sovereign nature of foreign sovereign or inter-state activities may both lead to a conclusion that an issue is non-justiciable in a domestic court’), para 123 (Lord Neuberger: ‘domestic courts should not normally determine issues which are only really appropriate for diplomatic or similar channels’), and paras 23, 237 and 239 (Lord Sumption: ‘an English court regards … as being done on the plane of international law, and their lawfulness can be judged only by that law. It is not for an English domestic court to apply international law to the relations between states, since it cannot give rise to private rights or obligations.’).

ibid

129 ibid, para 107(v) (emphasis added).

ibid

130 Benvenisti and Downs (n 125) 143.

131 ibid, para 252, citing R v Lyons [2003] 1 AC 976, para 13 (Lord Bingham); R (Hurst) v London Northern District Coroner [2007] 2 AC 189, paras 53–59 (Lord Brown); and R (Wang Yam) v Central Criminal Court [2015] UKSC 76, paras 35–36 (Lord Mance).

ibid

132 Belhaj, para 257. See also Kazemi Estate v Islamic Republic of Iran 2014 SCC 62; [2014] 3 SCR 176, para 150 (‘[t]he mere existence of an international obligation is not sufficient to establish a principle of fundamental justice. Were we to equate all the protections or commitments in international human rights documents with principles of fundamental justice, we might in effect be destroying Canada's dualist system of reception of international law and casting aside the principles of parliamentary sovereignty and democracy’).

133 [2014] SCC 62; [2014] 3 SCR 176, paras 150–151 (Le Bel J).

134 ibid, citing Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176, para 151.

ibid

135 ibid, para 257.

ibid

136 ibid, para 262. To the extent that the court must investigate the conduct of States (i.e. assess its lawfulness by reference to international rules) before deciding whether the foreign act of State doctrine applies, Lord Sumption might be said to be putting the cart before the horse.

ibid

137 Jones v Ministry of the Interior of the Kingdom of Saudi Arabi [2007] 1 AC 270, paras 24, 45; Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 176, paras 102–105, 141–167. It also stands in contrast to the view of the UK Supreme Court in other areas of law with constitutional significance. See, eg, Regina (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) (Nos 1 and 2) [2017] UKSC 51, para 68 (‘At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.’).

138 Jones v United Kingdom (2014) 59 EHRR 1, para 198.

139 Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) [2012] ICJ Reports 99, para 95.

140 Regina v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, paras 204–6.

141 Belhaj, para 107 (emphasis added).

142 ibid.

ibid

143 ibid.

ibid

144 ibid.

ibid

145 Belhaj, para 151.

146 ibid, para 168.

ibid

147 ibid.

ibid

148 The Attorney General (Jeremy Wright), ‘Belhaj and Boudchar: Litigation Update’, Hansard (10 May 2018) vol 640, col 926.

149 ibid, col 927.

ibid

150 Rahmatullah, para 109.

151 ibid.

ibid

152 ibid, paras 22, 31, 36 (for the quotation). Lady Hale did not doubt that there was also a rule preventing UK courts from reviewing certain decisions of high policy taken by the executive on the conduct of foreign relations: para 22.

ibid

153 ibid.

ibid

154 ibid, para 26. The source of the rule being a direction to the jury by Parke B in Buron v Denman (1848) 2 Exch 167, 154 ER 450.

ibid

155 Rahmatullah, para 31. At para 32 Lady Hale concludes that ‘if act of state is a defence to the use of lethal force in the conduct of military operations abroad, it must also be a defence to the capture and detention of persons on imperative grounds of security in the conduct of such operations. It makes no sense to permit killing but not capture and detention, the military then being left with the invidious choice between killing the enemy or letting him go.’

156 ibid, para 32 (Lady Hale); para 51 (Lord Mance), para 88 (Lord Sumption).

ibid

157 ibid, para 88 (Lord Sumption); Lord Mance expressly agreed with Lord Sumption (para 51), as did Lord Neuberger (para 104).

ibid

158 ibid, para 36.

ibid

159 ibid, para 36.

ibid

160 ibid, para 37. The judges noted that the doctrine potentially excluded persons owing allegiance to the Crown. According to Lady Hale ‘it does not apply to all torts committed against foreigners abroad just because they have been authorised or ratified by the British Government’ and it does not apply to acts of torture or to the maltreatment of prisoners: ibid, para 36.

ibid

161 ibid, para 81 (Lord Sumption).

ibid

162 ibid, para 72.

ibid

163 ibid, para 33 (Lady Hale), para 73 (Lord Mance); para 90 (Lord Sumption).

ibid

164 ibid, paras 41, 46 (Lady Hale, with whom Lord Wilson and Lord Hughes agreed), 76 (Lord Mance), 80, 97 (Lord Sumption, with whom Lord Hughes agreed), 106 (Lord Neuberger, with whom Lord Hughes agreed).

ibid

165 ibid, paras 37 (Lady Hale: ‘[f]or the purposes of these cases, we do not need to go further and inquire whether there are other circumstances, not limited to the conduct of military operations which are themselves lawful in international law, in which the defence might arise’) and 46; paras 75–77 (Lord Mance); para 95 (Lord Sumption).

ibid

166 ibid, para 50.

ibid

167 ibid, paras 80–81.

ibid

168 ibid, para 54.

ibid

169 ibid, para 51.

ibid

170 ibid, para 52.

ibid

171 ibid, para 57.

ibid

172 ibid, para 80.

ibid

173 ibid, para 81.

ibid

174 ibid, para 88; see also para 80.

ibid

175 ibid, para 45.

ibid

176 ibid, para 37 (emphasis added).

ibid

177 ibid, para 77.

ibid

178 Order of 12 April 2017.

179 Alseran v Ministry of Defence [2017] EWHC 3289 (QB), para 56. Leggatt J considered that (1) the word ‘conduct’ in the declaration encompassed ‘not just the particular act complained of by the claimant, such as the act of detaining him, but the conduct of the military operations in the course of which that act occurred’; and (2) the phrase ‘policy in question encompassed ‘any policy pursuant to which the act was done—whether it be a detention policy applicable at a particular location, or more widely, or a policy decided at the highest level such as the policy decision to invade Iraq’. See also paras 57–61.

180 ibid, para 75. According to Leggatt J, the principle of consistency does not preclude courts from determining that ‘a government policy of a kind which is judicially reviewable is unlawful and ultra vires and from treating as civil wrongs acts done pursuant to such a policy which are outside the scope of the government's powers’: para 71.

ibid

181 Rahmatullah, para 36.

182 ibid, noting that the Government ‘can achieve its foreign policy aims by other means’. Lady Hale also explained that the doctrine also would not apply to expropriation as compensation could always be paid, although ‘there could be circumstances in which the expropriation, or more probably the destruction, of property, for example in the course of battle, was indeed a governmental act’.

ibid

183 ibid, para 96 (Lord Sumption).

ibid

184 See also Jones v Saudi Arabia [2007] 1 AC 270, 302, paras 81–85.

185 See, eg, A v Secretary of State for the Home Department (No 2) [2005] UKHL 71.

186 Rahmatullah, para 96.

187 Alseran v Ministry of Defence [2017] EWHC 3289 (QB), paras 72, 75.

188 ibid, para 73 (emphasis in original).

ibid

189 Mohammed's detention after the 96-hour period did not fall within art 5(1)(f), and his detention between 11 April and 4 May 2010 (the second period) did not fall within art 5(1)(c). The question whether his detention during 5 May to 25 July (the third period) was compatible with art 5(3) was remitted for trial.

190 Belhaj, para 239 (Lord Sumption).

191 ibid, para 107 (Lord Mance).

ibid

192 ibid, para 257, referring to and endorsing the comments of Le Bel J in Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 178, paras 150–51.

ibid

193 Rahmatullah, para 33 (Lady Hale).

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