Review of the year: top ten international law cases of 2018

Easing ourselves into the new year, there has now been time to reflect on the key decisions of 2018. Here’s our top 10 list for 2018 (for 2017 see here and for 2016 see here):

1. Athanasios Sophocleous & Ors v Secretary of State for the Foreign and Commonwealth Office & Secretary of State for Defence [2018] EWHC 19 (QB) A striking feature of the last couple of years, including 2018, has been the extent to which issues of international law and human rights have come before the courts by way of private law claims. Private international law now plays a role in many prominent cases, having perhaps previously been eclipsed by its higher-profile public international sibling. This was certainly the case in 2017, which kicked off with a blockbuster trio of Supreme Court judgments in which pressing international law and human rights issues were analysed through both the public and private prism. 2018 also began with an important private law claim – one in a series of cases seeking redress for historic human rights violations. Here, the claim was brought by 34 people who claim to have been victims of serious violence by the UK armed forces during the so-called ‘Cyprus Emergency’ in 1956-1958. The High Court had to deal, as a preliminary issue, with the question of which law applied to the claim, for the purpose of limitation periods. Its reasoning (analysed by Joanna Buckley here) allowed this important claim to go ahead: Kerr J concluded that “it seems to me that, in this case at any rate, where a state stands to be held to account for acts of violence against its citizens, it should be held to account, in its own courts, by its own law and should not escape liability by reference to a colonial law it has itself made.” [197]
2. R (Bancoult) (No. 3) v Secretary of State for Foreign and Commonwealth Affairs (judgment; press release) The UK’s removal of the Chagossians from the Chagos Archipelago in the 1960s, and its ongoing refusal to allow them to return, has been the subject of more than a decade of litigation in the English courts, as well as a pending advisory opinion request by the International Court of Justice (the hearings in which were another notable event in 2018: see here). Bancoult (No. 3) dealt with the lawfulness of the UK’s 2010 decision to declare a “Marine Protected Area” round the Chagos Archipelago, and in the process also threw up a fascinating side issue of the admissibility of Wikileaks documents in an English court, in light of the “inviolable” status of diplomatic correspondence under the Vienna Convention on Diplomatic Relations. The Supreme Court described leaks of Government information as “a phenomenon of our time” and held that the Wikileaks material in question was not protected by the Vienna Convention: once in the public domain, previously secret material may be used to challenge Government decisions. (See analysis by Emma Dowden-Teale and Joanna Howard here).
3. Youssef and N2 v Secretary of State for the Home Department [2018] EWCA Civ 933 Here, the Court of Appeal considered whether a person can be excluded from protection under the Refugee Convention for encouraging or preparing for acts of terrorism – without having committed or attempted to commit a specific act, or being linked to any specific acts by others. This question required the Court to interpret the UK’s obligations under the Refugee Convention, a task which it carried out with reference to a UN Security Council Resolution and a decision of the CJEU. (See analysis by Eleanor Mitchell here)
4. R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs and others [2018] EWCA Civ 1719 Here, the Court of Appeal upheld the High Court’s previous decision (see analysis here) that an Egyptian general could not be arrested in the UK as he was a member of a “special mission” and therefore subject to immunity from legal process. The Court of Appeal had to examine the scope of the customary international law rule of immunity for members of special missions, consider whether it formed part of English law, and decide whether this was in conflict with the UK’s obligations under the UN Convention Against Torture. This is the latest in a line of decisions in which individuals have argued that the absolute nature of diplomatic (and related) immunity should yield in cases of torture and other serious ill treatment (see here for a further example).
5. R (Bashir) v Secretary of State for the Home Department [2018] UKSC 45 (judgment; press release) Like the Court of Appeal, the Supreme Court held that the Refugee Convention applies to the so-called “Sovereign Base Areas” of Cyprus – but this did not entitle the refugees who had been trapped there in poor conditions for many years to be resettled in the UK. (See UKSCBlog analysis here and our previous post here). However, the six families who had been trapped there were in fact then allowed to enter the UK – showing how a legal loss can turn into a practical victory.
6. R (Gulf Centre for Human Rights) v Prime Minister [2018] EWCA Civ 1855 The Court of appeal dismissed an application for permission to bring a judicial review claim challenging the Cameron Government’s removal of words in the Ministerial Code which expressly required Ministers to comply with international law – words which, according to the former head of the Government Legal Service, Sir Paul Jenkins, had caused Mr Cameron “intense irritation” as he “sought to avoid complying with our international law obligations.” (See analysis by Remi Reichhold here)
7. Ukraine v Law Debenture Trust Corp Plc [2018] EWCA Civ 2026 Ukraine v Russia in the Commercial Court, round two. Disagreeing with the High Court, the Court of Appeal held that Ukraine could in fact rely on the defence of duress in respect of Russia’s attempt to enforce payment of $3 billion of Eurobonds. So Russia’s summary judgment application failed, meaning that a fascinating trial is on the cards if the case continues. (For background to the dispute, see our analysis of the High Court decision here)
8. Lysongo v (1) Foreign and  Commonwealth Office (2) Government of Cameroon [2018] EWHC 2955 (QB) The year ended with a trio of significant private law decisions on redress for historic and extraterritorial wrongs. Here, the High Court struck out a claim in respect of alleged wrongs before and at the time of Cameroon’s independence, primarily on the basis that the alleged wrongs stemmed from UN actions over which the English courts did not have jurisdiction.
9. Kimathi v Foreign and Commonwealth Office [2018] EWHC 3144 (QB) Here, the claimant was one test claimant in a group action related to alleged torture and mistreatment by UK forces in Kenya in the 1950s. The court refused to issue its discretion to extend the limitation period to allow her claim to proceed: the court’s reasoning on the facts indicates the sorts of considerations which courts will take into account when deciding whether a fair trial of such issues is possible in cases of historic allegations.
10. Kalma v African Minerals and others [2018] EWHC 3506 (QB) This was a group damages claim against a UK-based mining company operating in Sierra Leone in respect of serious violence by the Sierra Leone Police in 2010 and 2012. The High Court dismissed the claims despite being critical of the company’s compliance with its human rights obligations in a number of respects. The lengthy and detailed judgment underlines the difficulty, despite the increasing “business and human rights” rhetoric, of enforcing those obligations in concrete cases, even where serious violence has occurred.

Outside the courts, other notable UK-related international law issues of 2018 included:

1. The challenges facing the UK in negotiating trade deals with the EU (analysed here);
2. The UK’s mass expulsion of Russian diplomats in response to the events in Salisbury (analysed here);
3. The lawfulness of the UK’s military strikes on Syria (analysed here);
4. The vexed issue of what Brexit will mean for the UK’s extradition arrangements (among, of course, many other aspects of the UK legal framework) (analysed here);
5. Whether UK companies should have a legal duty to prevent human rights abuses (analysed here);
6. The EU Member States’ failure to protect refugees in the Mediterranean (analysed here);
7. The ongoing talk of derogating from the European Convention on Human Rights (analysed here, here and here).

We look forward to covering the developments of 2019: as always, comments and contributions are warmly welcome.