Review of the year: top ten international law cases of 2016

The blog is back from its seasonal break! Throughout January, as well as covering new developments we will be looking back at the key cases of 2016. This week we list our Top 10 public (and one private) international law cases in the English courts: next week the focus will be on the last year’s developments in arbitration.

In chronological order, our top picks are:

1. Youssef v Secretary of State for Foreign and Commonwealth Affairs – the Supreme Court reviewed the Foreign Secretary’s use of prerogative powers (here, the power to conduct foreign relations) in placing someone on the list of those subject to UN sanctions for their connection to Al-Qaida. No duty on States to find out whether other States (or the UN) had taken decisions based on evidence obtained through torture?
2. Gold Reserve v Venezuela – the Commercial Court considered s.12 of the State Immunity Act 1978 (special procedure for serving legal proceedings on a State) and whether it applies to proceedings to enforce an arbitral award. The intersection of arbitration and PIL.
3. Estrada v Al Juffali – the High Court and Court of Appeal disagreed sharply about who has the last word on diplomatic immunity: see our analysis here.
4. Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani – another diplomatic immunity battle, which we covered along with Estrada v Al Juffali in our analysis here.
5. Bashir v Secretary of State for the Home Department – the High Court held that the UK’s obligations under the Refugee Convention do not apply to its Sovereign Base Areas in Cyprus.
6. Ministry of Defence (Respondent) v Iraqi Civilians (Appellant) – as we analysed here, the Supreme Court ‘transposed’ Iraqi law on limitation in a briefly-reasoned decision which led to around 600 claims against the British army being out of time.
7. High Commissioner for Pakistan in the United Kingdom v National Westminster Bank and others – the competing claims of Pakistan, India, and the descendants of an Indian prince to money deposited in a London bank account shortly after partition. The High Court had to decide whether the principle of non-justiciability, unlike that of sovereign immunity, can be waived.
8. Kontic v Ministry of Defence – the application of the ECHR to UK military operations in Kosovo, considered in our analysis here.
9. Freedom and Justice Party v Secretary of State for Foreign and Commonwealth Affairs and others – another immunity case; this time the High Court had to consider whether an alleged torturer was immune from arrest on the basis that he was in the UK as part of an Egyptian ‘special mission’.
10. Al-Saadoon v Secretary of State for Defence – another important decision on the territorial scope of the ECHR, this time in relation to UK military operations in Iraq.

The majority of these cases concern the scope of the English courts’ jurisdiction in one form or another. A mixture of domestic and international law has been used to map the frontiers of:

• The courts’ jurisdiction over the States or individuals who are before them, or who others seek to bring before them, particularly when faced with claims to sovereign and diplomatic immunity.
• The courts’ jurisdiction over acts alleged to have taken place in foreign locations, particularly in the course of armed conflict. When do the UK’s legal obligations extend beyond its borders?
• The courts’ jurisdiction over certain types of decision: which matters are for the Executive and which for the courts?

The approach to these issues has evolved over time: obligations which were once thought to apply only within the UK have travelled abroad; decisions which were once for the Government alone are now scrutinised by the courts. Sovereign immunity remains a firm bar to certain sorts of claim, however, even when this immunity comes into conflict with competing human rights norms.

Two cases which are, surprisingly, not on the list for 2016 are the linked Supreme Court cases of Belhaj and Rahmatullah, in which judgment has been awaited since the hearings in November 2015. This inordinate delay presumably reflects the difficult and controversial nature of the issues raised, including potential UK liability for rendition to torture in Libya.