|IS INTERNATIONAL LAW A PART OF THE LAW OF ENGLAND?
DAVID LLOYD JONES.
Most of us will remember writing essays at University on whether international law is part of the law of England. The correct answer – so far as customary international law was concerned - was generally considered to be “Yes, but …” In my day, the more enthusiastic among us might even have referred to Professor Hersch Lauterpacht’s article conveniently entitled, “Is international law a part of the law of England?” which appeared in the Transactions of the Grotius Society in 19391. This famous article was a ringing endorsement of Blackstone’s view that the law of nations (which for this purpose may be taken to refer to customary international law) is adopted to its full extent as part of the law of England.
“… the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of Parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilised world.”2
It may be questionable whether there was an antique rule to this effect, but there are undoubtedly many broad judicial statements since 1765 to the same effect3, not least that of Lord Denning M.R. in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria4. Sir Robert Jennings and Sir Arthur Watts in their edition of Oppenheim state that the proposition that the law of nations is part of the law of the land has been repeatedly acted on by the courts and can be regarded as an established rule of English law.5
Of course, a great deal has changed in the seventy years since Professor Lauterpacht delivered his paper to the Grotius Society. Not least, there has been a massive and rapidly accelerating increase in the number of cases in which our courts are called upon to decide issues which turn on points of public international law – either in customary law or under treaties. I think there are two principal reasons for this development. First there has been a huge increase in the number of States and international organisations and a proliferation of international regimes governing areas of activity both by States and individuals. Secondly, there has been a fundamental change in the nature of international law. International law is no longer confined to the regulation of the activities of States taking place on the international plane; it now confers rights and imposes duties on individuals in many areas – not least in the field of human rights. These developments have a vital bearing on the question of the status of international law before our courts. One of the reasons advanced by Lauterpacht as supporting his view that the theory of incorporation or adoption was “beneficent and progressive” was that rules of international law must not only be respected in the external relations of States as conducted by their governments but that they also regulate the conduct and the obligations of individuals in matters affecting the international relations of the State.6 Given the emergence, for example, of a customary international law of human rights, it is hardly surprising that national courts are confronted increasingly with issues of international law. However, this development is also bringing new challenges. In particular it is now necessary to take stock of the precise relationship between English law and international law and to consider whether it is either necessary or desirable to subscribe to all of the various propositions that may arguably be derived from earlier sweeping generalisations as to the nature of that relationship. This need has been identified by a number of commentators7 and is apparent from the observations of Laws L.J. in R. (Marchiori) v. Environment Agency8 and from the decision of the House of Lords in R. v. Jones (Margaret).9
Customary international law.
On any view the principle of incorporation of customary international law is subject to the supremacy of Parliament10 and the separation of powers11. However, it is a striking feature of Lauterpacht’s paper that he hardly mentions non-justiciability i.e. the notion that there are certain issues which are not properly the subject of adjudication before national courts or, specifically, before courts in our legal system. In identifying exceptions to the general principle of incorporation – the requirement of legislative action to implement treaties, the overriding effects of Acts of Parliament – he also refers in two brief paragraphs to acts of State.12 However, he is here addressing domestic act of State in particular in the context of State succession. Moreover, he states:
“The recent practice of English Courts has been to reject the view, followed in earlier times in English common law Courts and to a somewhat alarming degree in the present-day practice in France, that the interpretation of treaties involving political questions is outside the jurisdiction of the Courts.”13
This was, of course, long before the House of Lords in Buttes Gas and Oil Co. v. Hammer14 identified a general principle of non-justiciability in the field of international relations derived from Duke of Brunswick v. King of Hanover 15 which had unknowingly been exported to the United States16 and now reimported.17 However, the precise ambit of the principle is far from clear and it undoubtedly admits of exceptions.18 In this regard, it is also important to bear in mind that the Buttes Gas principle of non-justiciability is derived not solely from the US act of State doctrine, but also from the US political question doctrine under which it is accepted that resolution of issues in litigation may turn on standards that defy judicial application or involve the exercise of discretion vested in the executive or the legislature. Indeed, the very words used by Lord Wilberforce in Buttes Gas can be traced back to the judgment of the US Supreme Court in Baker v. Carr19: the court should not embark on the resolution of a dispute when there is “a lack of judicially discoverable and manageable standards for resolving it”.20 The uncertainty as to the scope of the principle of non-justiciability in English law is one reason why the precise relationship of international law and our municipal law is such a difficult question.
The facts of Buttes Gas were quite extraordinary and it is, perhaps, not surprising that it took such a long time for a case to come before the courts which required the enunciation of this principle of non-justiciability.21 Nevertheless, the resulting principle is an important limitation on the power of national courts to apply customary international law. As Richards J. observed in R (Campaign for Nuclear Disarmament) v. The Prime Minister 22 justiciability engages rules of law rather than purely discretionary considerations. These are rules that the courts have imposed upon themselves in recognition of the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibilities of the executive under our constitutional settlement.
An important recent example of the application of the principle is provided by R (Al Haq) v. Secretary of State for Foreign and Commonwealth Affairs.23 The applicant, an NGO based in Ramallah on the West Bank, sought in the Administrative Court a declaration that the United Kingdom was in breach of its international obligations in respect of Israeli activity on the West Bank and a mandatory order that HMG use its best endeavours to meet those obligations. In particular, it alleged that Israeli conduct involved breaches of peremptory norms of self-determination and the non-acquisition of territory by force. This claim was, in one respect, a more extreme case than Buttes Gas because there was here, to employ the terminology of Simon Brown L.J. in CND, “no point of reference in domestic law to which the international issue can be said to go … nothing here susceptible of challenge in the way of the determination of rights, interests or duties under domestic law to draw the court into the field of international law.”24 The Divisional Court in Al Haq had no difficulty in concluding that the proceedings were not justiciable. In its view two strands – the nature of the underlying claim, namely the condemnation of Israel, and the nature of the claim against HMG, namely a direction or declaration as to what foreign policy it should follow - operated together to demonstrate that the court should not consider the proceedings.25
Greater difficulty is likely to arise in those cases where the dispute before the court does have a toe-hold in domestic law. In some such cases the dispute has been considered justiciable and the court has pronounced on issues of international law: Oppenheimer v. Cattermole26; Kuwait Airways (Nos. 4 and 5)27; A v. Secretary of State for the Home Department (No. 2)28. By contrast Buttes Gas itself undoubtedly had a firm foot-hold in domestic law via a plea of justification to defamation but the issue was considered non-justiciable.29 As matters stand, I doubt that it is possible to do much more than identify some of the considerations which are likely to influence the decision on justiciability in such cases. One will clearly be the extent to which an alleged breach of international law is open to dispute.30 A second may be the importance attached to the resolution of the dispute before the national court.31 A third will be precisely what the hearing and decision of the issue would entail.32 This was clearly a highly influential factor in the speech of Lord Wilberforce in Buttes Gas33. The precise scope of the principle will, it seems, have to be worked out on a case by case basis. As Simon Brown L.J. observed in Abassi34 the issue of justiciability depends not on general principle, but on subject matter and suitability in the particular case.
A further question which arises here is whether a cause of action, effective and enforceable before municipal courts, may be derived directly from customary international law. The editors of Oppenheim state:
“The application of international law as part of the law of the land means that subject to the overriding effect of statute law, rights and duties flowing from rules of customary international law will be recognised and given effect by English courts without the need for any specific act adopting those rules into English law.”35
On the face of things, therefore, it should be possible to sue on a cause of action derived from public international law. Lauterpacht, it seems, would have had no problem with such a result. He points to the first instance decision in The Emperor of Austria v. Day and Kossuth36, where the Vice-Chancellor, in granting an injunction restraining the defendants from printing money on behalf of the revolutionary Government of Kossuth in derogation of the public rights of the Emperor, said:
“A public right recognised by the law of nations, is a legal right; because the law of nations is part of the common law of England.”37
This, says Professor Lauterpacht, is “an important example of a remedy granted by direct and exclusive reference to international law”.38 (I note, however, that on appeal39 the plaintiff/respondent abandoned any claim to relief on the ground of “a mere invasion of the prerogative of a reigning sovereign”40 which was expressly disapproved by the Court of Appeal in Chancery and the grant of the injunction was upheld on the very different ground that the proposed course of conduct threatened to infringe the property rights of the plaintiff.) Even if it is possible to strip away the considerations of enforcement of foreign public laws which are in play in that case, it must be questionable whether it is possible to derive a cause of action directly from customary international law.41 This is the point made by Sam Wordsworth in his recent paper to ALBA.42 He suggests that we should hesitate before drawing any such conclusion and he points to the observation of Laws LJ in Al Saddoon that the “proposition that a customary rule may be sued on as a cause of action in the English courts is perhaps not so clear cut.”43
Treaties, of course, are different. A treaty concluded by the United Kingdom does not form part of the law of the land unless implemented by an Act of Parliament. In particular, treaties affecting private rights will not be enforced by the courts unless they have been given effect in municipal law by legislation.44
Lauterpacht writing in 1939 stated that the precise limits of that rule have never been authoritatively laid down by a court of law. Of course, we now have such an authoritative statement in the Tin Council case.45 There Lord Oliver (at pp. 499-501) expressed the matter in the following terms. First, municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign States between themselves on the plane of international law. Secondly, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. However, he went on to explain that it does not follow that the court must never look at or construe a treaty.46
In In Re McKerr47Lord Steyn drew attention to the fact that some very distinguished commentators have suggested that the Tin Council case overstates the necessary extent of the principle of non-justiciability in its application to non-implemented treaties. The critics accept that there undoubtedly exist limitations on the judicial function, in particular those arising from immunities in international law and from principles of act of state. Furthermore, there is the domestic rule of constitutional law that the courts will not give effect to a non-implemented treaty in so far as this would require a change in the law. Nevertheless, as Judge Sir Robert Jennings observed (in commenting on the speeches in the House of Lords in JH Rayner):
“It seems, however, unnecessary to erect from these rules some kind of general doctrine of the “unjusticiability” of “unincorporated” treaties. Such a “doctrine” in general terms would be contrary to precedent, to reason and to common sense.”48
They point to the judgment of Kerr L.J. in the Court of Appeal in the Tin Council case49 which would support a more limited approach:
Any question whether or not a matter connected with an unincorporated treaty is justiciable must depend on the nature of the issue which is under consideration and not on whether the arguments or evidence placed before the court require reference to the contents of an unincorporated treaty.
Reliance on the doctrine of non-justiciability may all too easily involve an approach which tends to preclude all reference to the terms of a treaty and to inhibit the duty of the court to decide justiciable issues.
Non-justiciability rests on two general principles:
Since unincorporated treaties have no legislative effect, they do not form part of the law of England and therefore no private rights or obligations can be derived from the provisions of such treaties.
Although treaties are agreements intended to be binding upon the parties to them, they are not contracts which our courts can enforce. Any issue between the parties to an unincorporated treaty is a non-justiciable issue in our courts.
However, the doctrine does not preclude the decision of justiciable issues which arise against the background of an unincorporated treaty in a way which renders it necessary or convenient to refer to, and consider, the contents of the treaty. A court must be free to inform itself fully of the contents of a treaty whenever these are relevant to the decision of any issue which is not in itself a non-justiciable issue.
In applying this approach Kerr L.J. concluded:
“So the court must consider ITA6 against the background of international law in order to inform itself about the nature of the ITC. And for that purpose one must also reject any suggestion that when a court looks at an unincorporated treaty, it is then precluded from applying any process of interpretation to its provisions. This was submitted from all sides from time to time in different contexts. However, reading a treaty involves seeking to understand it, and this may necessarily involve some interpretation of its terms.”
It is possible to point to some comparatively recent cases in which English courts have apparently shown a greater willingness to examine and interpret treaties which have not been implemented into municipal law, particularly in the field of human rights.50 In particular, in R v. Secretary of State for the Home Department, ex parte Launder  1 WLR 839 and R v. Director of Public Prosecutions, ex parte Kebilene  AC 326 domestic courts decided the extent of the United Kingdom's obligations under the European Convention on Human Rights before it was given effect in domestic law by the Human Rights Act 1998.51
However, I would suggest that the appropriate approach may depend not simply on the nature of the issue before the court but also on the legal context in which it arises.
Take, for example, an application for judicial review which is founded on the submission that the decision maker has misdirected himself as to the meaning and effect of a non-implemented treaty. This was the situation confronting the House of Lords in Corner House52. There, the Director of Public Prosecutions claimed that his decision not to prosecute was in accordance with Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In the event it was not necessary for the House of Lords to decide the question whether a mistaken understanding of a non-implemented treaty provision could found a judicial review. However, both Lord Bingham and Lord Brown addressed the issue. Lord Bingham described as “problematical” the Claimant's submission that it was open to the domestic courts to interpret the non-implemented treaty provision and, if the Director's interpretation were found incorrect, to quash the decision based upon it.53 Lord Brown, while accepting that there are occasions on which the courts will decide questions as to a State’s obligations under unincorporated international law, considered that for a national court to decide an issue such as that which arose in that case would be a remarkable thing, not to be countenanced save for compelling reasons. In his view, the furthest a court should go should be to adopt a “tenable view” approach.54 This is a reference to the approach proposed by Sales and Clement in their article, “International Law in Domestic Courts: The Developing Framework”55 where they suggest that a national court should either decline to rule at all or should allow the executive a “margin of appreciation” and examine only whether a tenable view has been adopted on the point of international law.56
I have encountered this point twice recently in cases in the Administrative Court. The first was R (Badger Trust) v. The Welsh Ministers57 where the Minister in making the Order which would permit a cull of badgers had stated that she had considered the Bern Convention on the Conservation of European Wild Animals and Habitats 1979, a non-implemented treaty to which the United Kingdom is a party, and that the Order would not give rise to a breach of the Convention. On behalf of the Claimant it was submitted that Article 9 required an evaluation of the benefit which culling might secure against the destruction of badgers and that that had not taken place. I doubted whether there was such an obligation under the Convention but, in any event, considered that it was sufficient, given the context in which the issue arose, that the Minister’s view of the effect of the treaty was a tenable one.
The second was R (ICO Satellite) v. The Office of Communications58 which, to my mind, provides a good example of the difficulties of a domestic court expressing a concluded view on a disputed point as to the meaning and effect of non-implemented instruments governing a regime established by an international organisation. This was a challenge to a decision by Ofcom to recommend to the International Telecommunications Union the revocation of a licence granted to use a particular frequency on grounds of non-use. The Claimant submitted that Ofcom had taken into account an irrelevant consideration in wrongly considering that it was bound or encouraged by the ITU regime to take steps to cancel the filing. In support of this contention the Claimant relied on letters from senior officials of the ITU. However, it was clear from the material before the court that widely different views were held as to the consequences which should follow under the ITU regime in circumstances where an assignment has not been brought into regular operation in accordance with its notified specification. That was a live dispute as to the rights and duties of the 191 national administrations which participate in the ITU regime. Moreover, there was provision within the ITU regime for dispute resolution, although the question whether that would be applicable in the circumstances of the case was itself apparently in dispute. It seemed to me that, for the reasons given by Lord Bingham and Lord Brown in Corner House it was not appropriate to go beyond considering whether the Ofcom view was a reasonably tenable view.
In his paper to ALBA last month, Sam Wordsworth suggested that a similar approach might be adopted when it comes to the application of rules of customary international law in the English courts. That may well be an appropriate approach in certain circumstances, for example in the field of judicial review. However, there are likely to be other circumstances in which it will be necessary for the municipal court to decide the disputed question of customary international law or as to the meaning or effect of a non-implemented treaty. The particular situation I have in mind is one where it is necessary to make such a decision in order to give effect to independent rights or duties of individuals arising under domestic law.59
A striking example of the English courts giving effect to rights derived from a non-implemented treaty is provided by the decision of the Court of Appeal in Republic of Ecuador v. Occidental Exploration and Production Company (No. 1)60 which concerned the Bilateral Investment Treaty between Ecuador and the USA. The treaty provided that in the event of an investment dispute the nationals and companies of each State should enjoy direct dispute resolution rights against the other State including arbitration under the UNCITRAL Rules. Such an arbitration took place between Occidental and Ecuador with its seat in London and resulted in an award in favour of Occidental. Ecuador challenged the award in the Commercial Court pursuant to sections 67 and 68, Arbitration Act 1996 on the ground that the arbitrators had exceeded their jurisdiction. Occidental objected that the proceedings raised issues upon which the English courts could not or should not adjudicate because it would require the courts to interpret and enforce a treaty which had not been incorporated into English law and it would be contrary to the principle of judicial restraint or abstention which precluded an English court from adjudicating upon the transactions of foreign sovereign States.
The Court of Appeal concluded that neither of these principles of non-justiciability precluded the English court from deciding a challenge to the jurisdiction of the arbitrators notwithstanding that this would involve construing the treaty provisions by reference to which their consensual jurisdiction was defined. The case was not concerned with an attempt to invoke at a national legal level a treaty which operated only at the international level. Rather it concerned a treaty intended by its parties to give rise to rights in favour of private investors capable of enforcement to an extent specified by the treaty wording in consensual arbitration against one or other of its signatory States.61 As the Court of Appeal pointed out, given the right context the English court can and will have regard to an international treaty and general international law. Furthermore, the principle of non-justiciability is not, in any of its aspects, absolute and need not and should not be applied over-rigidly.62
It may be that this is not a situation where one size fits all. It may be that the effect to be given to a rule of customary international law or a non-implemented treaty provision should depend not only on the issue for decision but also upon the context in which that issue arises and the precise use to which the rule or provision is to be put. So I would warn against drawing specific legal conclusions from the sweeping generalisations to be found in some of the cases. Contrary to Lauterpacht’s view63, it seems to me that there is an important difference between the propositions that international law is part of the law of England and that it is a source of the common law, the latter involving the inter-position of an act of judicial judgement.64 International law is undoubtedly a rich quarry in which to dig. However, the precise relationship of international law and the common law as applied in England requires to be worked out in detail in individual cases, taking proper account of our internal constitutional arrangements and domestic notions of non-justiciability, while at the same time giving great weight to the beneficent character of international law. I am confident that you will all have enormous fun doing precisely that.