Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.
In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.
The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.
Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.
The English Divisional Court refused to grant the Campaign for Nuclear Disarmament an advisory declaration on whether UN Security Council Resolution 1441 authorised the United Kingdom, without further approval, to use force against Iraq. [Campaign for Nuclear Disarmament v Prime Minister of the United Kingdom  EWHC 2777 (Admin)] The Court considered that the question was non-justiciable, since its determination would be damaging to the public interest in the fields of international relations and security. It also took account of the fact that the international instrument which it was asked to interpret – Resolution 1441 – had not been incorporated into English law by way of statute.
The Court made clear its analysis of the division of responsibilities between domestic and international courts:
‘the domestic courts are the surety for the lawful exercise of public power only with regard to domestic law; they are not charged with policing the United Kingdom’s conduct on the international plane. That is for the International Court of Justice.’ [para.36]
Benvenisti and Downs would consider this hard-edged distinction to be increasingly untenable. However, some potential blurring of that distinction can be seen in the Court’s observation that ‘there is nothing here susceptible of challenge in the way of determination of rights, interests or duties under domestic law to draw the court into the field of international law.’ [para.36] This suggests that, where an individual’s rights or obligations are engaged, the courts will have to overcome their traditional reluctance to dealing with such issues. Cases in which they have done so include judicial review claims brought on behalf of British residents detained at Guantanamo Bay.
A range of judicial attitudes to international law is evident from the case of Milling and Jones. Anti-war protesters charged with criminal damage at a US air force base in the UK wanted to argue that they were preventing the crime of aggression. Prevention of crime is a valid defence to a criminal charge in England. But, mirroring the Rome Statute, the United Kingdom had not included aggression in its domestic war crimes legislation. So the question was whether the customary international law crime of aggression was a crime in English law, although not contained in an English statute. The trial judge ruled that the issue was non-justiciable, despite the fact that individual rights depended on it. [Unreported, 12 May 2004, Grigson J] The Court of Appeal held that the issue was justiciable, but that the failure of the International Criminal Court to finalise the definition of aggression meant that the crime was not sufficiently well defined to be transmitted into domestic law. [ QB 259].
The trial judge’s decision is open to criticism because of its refusal to rule on the issue even when a fair trial depended on it. In other words, the defendants may or may not have had a valid defence to the criminal charges which the State had chosen to bring against them, but the principle of non-justiciability prevented the court from considering the merits of the defence. This is an extreme example of judicial avoidance. The decision of the Court of Appeal blends two of the ‘interpretive biases’ which Benvenisti and Downs identify: ‘a tendency to intepret international rules in light of their governments’ interests’, and ‘a tendency to interpret narrowly those articles of their national constitutions that imported international law into the local legal systems, thereby reducing their own opportunities to interfere with governmental policies in light of international law.’ The decision is based on a confusion between customary and conventional international law. The offence described at Nuremberg as the ‘supreme international crime’ was held barely to exist, purely because the international community had not finalised the definition for one very specific purpose: prosecutions by the ICC.
By contrast, the decision of the House of Lords was a model of the new style of engagement identified by Benvenisti and Downs.  1 AC 136. Giving the leading speech, Lord Bingham engaged carefully with the history and nature of the offence, ruling finally that aggression was not a crime in English law because Parliament had not criminalised it in legislation, and it was no longer constitutionally acceptable for judges to create criminal offences. Although reaching the same result as the courts below, the House of Lords took a different and more principled route. There was no suggestion that the issue was non-justidicable, or that the crime of aggression was not sufficiently defined. The passage of this case through the courts is an interesting demonstration of the range of attitudes which the authors identify.
Another strand of Benvenisti and Downs’ analysis is the evolving relationship between domestic and international courts. The relationship between the European Court of Human Rights and the English courts would make an interesting case study on this issue. It demonstrates that the decisions of international courts can embolden domestic courts to uphold individual rights against the executive. However, it also shows that, even in an era of increased interjudicial co-operation, there can still be tension between national and international courts. This is especially so where the international court directly scrutinises domestic court decisions.
The Strasbourg court has differed from the English courts on a range of sensitive political issues, including whether suspected terrorists could be placed on onerous control orders on the basis of material which they would never see, either in full or in summary form. The Strasbourg Court concluded, in A and others v United Kingdom that such a procedure violated Articles 5 and 6 of the Convention. [Application No 3455/05.] The Court was unequivocal that the minimum standards of fairness guaranteed by those articles could not be met where the person was placed on such an order on the basis of material on which he could not give effective instructions to his lawyers, and which he had no opportunity to consider or challenge. This was so regardless of the other interests concerned, including national security and the prevention of terrorism.
The House of Lords had already considered the issue in A’s case, and in a related case, and had not stated the minimum standards of fairness in anything like such unequivocal terms. They were not constitutionally bound to follow the Strasbourg decision, but they chose to apply it. [Secretary of State for the Home Department v AF  UKHL 28, 10 June 2009] One senses in the majority of the speeches that their Lordships welcomed the strong support of the Strasbourg court in upholding individual rights in the face of the executive’s enthusiasm for sweeping anti-terrorism measures.
Not so for Lord Hoffmann. Although he concurred in the result, he stated that:
‘ do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism.’ [para.84]
However, it is interesting that respect for international law prevailed against this reluctance: Lord Hoffmann considered that:
‘the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.’
Whether experienced as a supportive or a detrimental force, the international court prevailed.
These observations are parochial when compared with the impressive way in which Benvenisti and Downs have drawn together strands from international and domestic tribunals throughout the world. But they exemplify some of the trends which the authors discuss, and some of the continuing tensions which the domestic courts will have to face.