Where now for international law in the domestic courts?

On Monday, Matrix hosted a seminar discussing the three landmark judgments handed down by the Supreme Court on the 17^th of January this year:

1. Rahmatullah (No 2) v Ministry of Defence and another; Mohammed and others v Ministry of Defence and another [2017] UKSC 1;
2. Al-Waheed v Ministry of Defence; Serdar Mohammed v Ministry of Defence [2017] UKSC 2;
3. Belhaj and another v Straw and others; Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3.

All three judgments concern the liability of the UK government for allegedly tortious acts committed (a) in the course of overseas operations by HM Forces, or (b) by foreign governments, with the complicity of UK officials. Richard Hermer QC, Phillippa Kaufmann QC and Edward Craven, who appeared as counsel, discussed the effect of these judgments on the doctrines of foreign act of state, on crown act of state, and on the relationship between domestic, convention and international law.

The doctrine of foreign act of state

The panel discussed the reluctance of Lord Neuberger in his judgment in Belhaj to prescribe definitively the scope of the doctrine of foreign act of state. What emerges from his judgment is that the doctrine may apply to unilateral sovereign acts conducted outside the territory of the foreign state, but that the doctrine will “almost always” only apply to acts outside the territory of the foreign state where actions involve more than one state. The involvement of different states does not inevitably mean that the doctrine applies, but “some sort of comparatively formal, relatively high level arrangement” may indicate that it does.

the majority judgments provide little clear rationale for the seemingly wide application of the doctrine

The panel noted that the majority judgments provide little clear rationale for the seemingly wide application of the doctrine as a bar to tortious claims. This is particularly so when considering that UK judges will adjudicate upon foreign acts such as torture within the forum of the First Tier Tribunal in asylum and immigration claims. The lack of a clear rationale provided in the judgment, combined with non-prescriptive principles as to when an act will fall within the doctrine, leaves us in arguably no clearer a position as to when domestic courts are exempt from adjudicating upon the legality of foreign sovereign and inter-state activities.

The doctrine of crown act of state

In Rahmatullah (No 2), the scope of the doctrine of crown act of state was defined in equally open-ended terms. In her judgment, Lady Hale stated that the doctrine applies to acts which are “in their nature sovereign acts – the sorts of thing that governments properly do; committed abroad; in the conduct of the foreign policy of the state; so closely connected to the policy to be necessary in pursuing it.” Lady Hale noted that this leaves a very narrow class of acts, which at least extends to the conduct of lawful military operations, but declined to state the full extent or limit of the doctrine’s application.

The panel discussed the questions which this judgment has now raised:

1. Is the principle of crown act of state necessary in the tort context, considering that there is no such bar to human rights claims?
2. Does the doctrine have the potential to apply beyond military operations which are lawful under international law? For instance, does it apply to the mistreatment of detainees if this has been authorised by a foreign state’s policy?
3. Could the doctrine be better characterised as two separate doctrines, one as a rule of justiciability, and the other as a defence to tortious claims?

The relationship between domestic, ECHR and international law

In Al-Waheed, the majority found that Security Council Resolutions 1546 and 1386 could be interpreted as implicitly authorising detention falling outside article 5(1)(a) to (f) of the ECHR. The panel explained that the judgment has gone beyond Al-Jedda [2011] ECHR 1092, in which letters annexed to a Security Council Resolution explicitly authorised detention in circumstances other than those outlined in article 5(1)(a) to (f). Further, the judgment goes beyond Hassan v United Kingdom (2014) 38 BHRC 358, which limited a modified reading of article 5 of the ECHR to accommodate international humanitarian law applicable during international armed conflict. The judgment in Al-Waheed has now set a precedent that a Security Council Resolution, without explicit wording, nonetheless has the potential to ‘override’ a Convention right, even in non-international armed conflict.

The panel noted that we cannot ignore the political context in which the judgment in Al–Waheed was handed down, given that the case was identified by Theresa May as a reason why the Human Rights Act 1998 should be repealed.