The blog is back from its seasonal break! A year on from our last Top 10, we take a look at the cases which shaped international law in the English courts in 2017.
The year kicked off with three immensely important Supreme Court decisions on the application of various aspects of international law in the domestic courts, all arising out of UK conduct abroad (see our analysis here):
1. Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence  UKSC 1 [Judgment; press release] The Supreme Court held that the “act of state” doctrine barred claims for mistreatment brought against the UK by people who claim to have been wrongfully detained or mistreated by UK or US forces during the conflicts in Iraq and Afghanistan – a much broader interpretation of the act of state doctrine than in the lower court.
2. Al-Waheed v Ministry of Defence; Serdar Mohammed v Ministry of Defence  UKSC 2 [Judgment; press release] Another detention claim: here, the majority of the Supreme Court held that there was legal authority for the UK armed forces to detain prisoners in Iraq and Afghanistan for more than 96 hours if this was necessary for security reasons. But the procedures for doing so did not comply with Article 5(4) because they did not give a detained person an effective right to challenge his or her detention. Mr Al-Waheed’s civil claim went ahead following this decision, leading to an award of damages for his mistreatment.
neither state immunity nor the doctrine of foreign act of state barred the claim
3. Belhaj v Straw; Rahmatullah (No. 1) v Ministry of Defence  UKSC 3 [Judgment; press release] Abdulhakim Belhaj against Jack Straw, MI6 and the Government has been widely reported, given their alleged involvement in the sending of Mr Belhaj to torture in Libya. The Government again argued that his and Mr Rahmatullah’s claims were barred, but here the Supreme Court disagreed, holding that neither state immunity nor the doctrine of foreign act of state barred the claim. Importantly, the Court held that the doctrine of foreign act of state is subject to an important public policy exception where fundamental rights are engaged, including the prohibition on torture.
The year continued with an interesting and diverse selection of decisions.
4. R (Akarcay) v (1) Chief Constable of the West Yorkshire Police, (2) Secretary of State for the Home Department, and (3) National Crime Agency  EWHC 159 (Admin): see analysis here. It was perhaps inevitable that the Court refused to hold that, in a situation where people accused of serious crimes in the UK take refuge in Northern Cyprus, the UK police had to sit on information which could help to bring them to justice there. Accordingly, law enforcement assistance was not barred by the fact that the UK does not recognise Northern Cyprus as a state – including because the UN itself works with the Northern Cypriot law enforcement authorities. Again, given the political climate and the desire to reduce Northern Cyprus’ isolation from the international community, it would have been difficult to reach any other conclusion. The case does, however, contain some problematic (though obiter) analysis of the relevance of unincorporated treaties, and the vexed issue of the relationship between customary international law and English law.
5. R (Bashir) v (1) Secretary of State for the Home Department (2) Sovereign Base Authority  EWCA Civ 397 (see our analysis here). The Court of Appeal confirmed the decision of the lower court that refugees trapped in the Sovereign Base Areas of Cyprus are covered by the Refugee Convention: an important decision on the application of the UK’s treaty obligations to territories from its colonial past. The story does not end here: the case is now on appeal to the Supreme Court.
6. Law Debenture Trust Corporation PLC v Ukraine  EWHC 655 (Comm) (for analysis see here.) Ukraine v Russia in the Commercial Court: a seemingly anodyne summary judgment application by a firm of professional trustees raised fascinating legal and political issues as to the capacity of a State to contract, and the defence of duress – Ukraine argued that it did not have to pay for the bonds because Russia’s economic and military pressure amounted to duress in English law. Hard to see why this defence should be summarily dismissed: perhaps the Court of Appeal will take a different view when it hears the appeal.
mapping the frontiers of the English courts’ jurisdiction
7. R (Campaign Against the Arms Trade) v Secretary of State for International Trade  EWHC 1754 (Admin) (for analysis see here.) British arms sales to Saudi, and their subsequent use in the appalling conflict in Yemen, have been the subject of much public criticism. The government’s decision to license such exports was challenged by Campaign Against the Arms Trade. But despite the powerful evidence which it presented, the court rejected its claim, reluctant to intervene in a decision which it concluded was “imbued” with diplomatic and security considerations.
8. Taurus Petroleum Limited v State Oil Marketing Company of the Ministry of Oil, Republic of Iraq  UKSC 64. Important guidance from the Supreme Court about the enforcement of international arbitral awards in the framework of English law, in particular in cases involving letters of credit.
Then the year drew to a close as it began, with a group of important decisions from the Supreme Court, this time arising out of the alleged mistreatment by diplomats of their domestic staff:
9. Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent)  UKSC 62 (see analysis here.) Here, the Court held that certain provisions of the State Immunity Act 1978 (“SIA”) barring the claims were not justified by any rule of customary international law, and so were incompatible with both Article 6 of the ECHR and Article 47 (right to an effective remedy and to a fair trial) of the EU Charter of Fundamental Rights.
10. Reyes (Appellant/Cross Respondent) v Al-Malki and another (Respondents/Cross-Appellants)  UKSC 61 (see analysis here.) Here, the diplomat in question no longer had a diplomatic post. The Court found that a diplomat’s immunity after leaving their post is limited by Article 39 of the Vienna Convention on Diplomatic Relations 1961 to acts performed in the exercise of their diplomatic functions. It held that the employment and mistreatment of domestic staff does not fall under the category of acts performed in the exercise of diplomatic functions, and so allowed Ms Reyes’ claim to go ahead.
The application of international law by the higher courts continues to be focused on mapping the frontiers of the English courts’ jurisdiction over:
- People: the continuing issue of whether diplomats can be held accountable for human rights violations.
- Places: the application of the UK’s treaty obligations to overseas territories and to the conduct of British authorities overseas; the possibility of bringing claims involving the conduct of foreign States.
- Decisions: the extent to which executive decisions in matters involving international law – likely to be among the more sensitive decisions taken by the executive – can be reviewed by the courts, especially when fundamental rights are engaged.
We will continue to follow developments in the coming year, which sees a number of important cases on appeal, new challenges, and, stepping outside the English courts, the UK’s conduct coming under scrutiny by the International Court of Justice in its first Advisory Opinion in a decade, Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (comment on this fascinating case has been limited on this blog, as the author is counsel for Mauritius, but excellent analysis can be found on EJIL:Talk!)