R (Freedom and Justice Party) v SS Foreign & Commonwealth Affairs: How Should International Law Inform the Common Law
In R (Freedom and Justice Party) v Secretary of State for Foreign & Commonwealth Affairs,…
In Belhaj and another v Straw and others, the Supreme Court gives detailed analysis of the principles of international and domestic law that might protect state violations of human rights. In the end, these principles are unlikely to assist the defendant when serious allegations of detainment or torture are at stake.
Link to judgment:  UKSC 3
In this judgment the Court dealt jointly with issues arising from two claims concerning the collaboration between British authorities and human-rights-violating regimes.
The first claim was brought by Mr Belhaj, a Libyan dissident and opponent of Colonel Gaddafi. In 2004 he and his wife, while trying to leave China, were detained by Chinese authorities and brought to Malaysia. According to Mr Belhaj, their whereabouts were then leaked to the Libyan regime by British intelligence services. This led to their detainment by Malaysian, Thai, and US officials, before they were finally brought by a US airplane to Libya. They allege that they then suffered torture and inhumane and degrading treatment at the hands of the Libyan authorities. Mr Belhaj was detained until 2010, while his wife was released in 2004.
Mr Belhaj therefore claimed that British authorities provided assistance to this unlawful rendition and treatment. Reliance, in particular, was placed on a letter allegedly sent by Sir Mark Allen, a senior official in the Secret Intelligence Service (SIS), to a Libyan official (only discovered when Libyan government offices were stormed after Gaddafi’s overthrow) congratulating him on Mr Belhaj’s “safe arrival”. The letter read:
“This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years”. (para 4)
The second claim was brought by Mr Rahmatullah, a Pakistani national detained in 2004 by British forces in Iraq on suspicion of being a member of Lashkar-e-Taiba, a proscribed terror organisation. The British authorities handed him to US forces, who kept him in custody in their Bagram Airbase in Afghanistan. He was detained there without charge for over 10 years, before finally being released in May 2014. His claim is thus that UK officials assisted and encouraged the US forces in this unlawful detention and mistreatment.
The Supreme Court was not being asked to assess the factual merits of the claims. It was rather considering two points of law that the appellants (including then-foreign secretary Jack Straw, along with the Foreign Office and Home Office) argued made these claims inadmissible or non-justiciable. These were the doctrines of ‘state immunity’ and ‘foreign act of state’.
‘State immunity’ is the principle of international customary law that, broadly speaking, states are immune from the jurisdiction of another state’s domestic courts. This derives from the principle of the sovereign equality of states, which itself is a fundamental component of the international legal order (cf. Article 2 para 1 of the UN Charter). State immunity is also recognised by UK domestic law in the State Immunity Act 1978. The doctrine dictates that states cannot be sued in the courts of another country for acts done with its sovereign authority (i.e. acta jure imperii – states may still be liable for its private-law or commercial dealings, i.e. acta jure gestionis, see e.g. s3 State Immunity Act 1978).
The ‘foreign act of state’ doctrine, on the other hand, derives from domestic law. In general terms, it stipulates that courts will not rule on the lawfulness of certain acts done by a foreign state. Though to some degree overlapping with ‘state immunity’, it is a distinct principle and has various strands and limitations not found in the international law doctrine. Quite how it could be defined and analysed, however, was a point of contention between the judges, as we shall see.
First, the court dealt with state immunity. The appellants argued this principle meant domestic courts cannot hear claims where it must determine if foreign officials acted contrary to their own laws.
The Supreme Court disagreed. It held that state immunity is only relevant when there is ‘impleading’ of the foreign state, i.e. its legal position is affected, either by being sued directly or by its ‘property, rights, interests or activities’ being impacted (Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of States and Their Property (2004)). However, no foreign states were being sued here, nor did these claims affect foreign states’ proprietary or possessory title (para 29). The only consequences they might suffer were reputational harm, which according to the court did not fall under a state’s ‘interests or activities’ for the purposes of the UN Convention.
The court also drew attention to the dangerous consequences of the appellants’ argument. If state immunity protected the appellants (including the UK government), it would mean that these alleged wrongs committed by UK authorities could not be pursued in any judicial forum in the world (para 30). This was because in any domestic court outside the UK the British government would enjoy state immunity. If it could also avoid redress in its own courts, then, it would escape liability everywhere.
The court, therefore, had no hesitation in holding that state immunity offered the appellants no protection.
In their analysis of the authorities, Lord Mance and Lord Neuberger identified three ‘types’ of the ‘foreign act of state’ rule:
Since there was no foreign legislation at issue in these claims, the first of these was not relevant. What was at issue, however, were acts of foreign states (i.e. the acts of those states with which, it was alleged, British authorities collaborated).
The appellants argued that the second type should be extended to protect a state’s acts towards individuals (i.e. not just acts towards property). Lord Mance was hesitant to take this step, and both he and Lord Neuberger were clear that, even if this rule could be extended, it would be subject to a public policy qualification that would allow serious allegations (such as torture, as in this case) to be pursued (paras 80 and 156).
It was in their discussion of the third type of ‘foreign act of state’ where the judges’ difference of opinion was most clear. Lord Mance held that detention during an armed conflict overseas (as was the case for Mr Rahmatullah) might constitute a ‘foreign act of state’ that was thus non-justiciable in domestic courts. However, it would depend on the gravity of what was alleged. Here, the claimant’s raised issues of ‘apparently arbitrary rendition’ and ‘arbitrary detention’ (para 97). This was simply too serious to be protected by the third strand of the ‘foreign act of state’ doctrine (para 104).
Lord Neuberger, on the other hand, said the third type could never apply to acts like this where there was no ‘sort of formal or high-level agreement or treaty between any of the states involved which governed the cooperation between the executives of the various countries concerned’ (para 167). He added, however, that even if it did, it would be limited by a stringent public policy exception, which would clearly apply to allegations included kidnapping and torture (para 168). He noted that any breaches of peremptory norms of international law would most likely fall within this exception, though given the domestic origins of the ‘foreign act of state’ rule he felt this was not always necessary to show.
Of the seven justices, Lord Wilson agreed with Lord Neuberger, and Lady Hale and Lord Clarke voiced their support for both Lord Mance and Lord Neuberger together, considering that they reached the same conclusions for ‘essentially’ the same reasons (para 174).
However, Lord Sumption (with Lord Wilson’s support) took a different approach. He divided the ‘foreign act of state’ doctrine into two strands: (i) ‘municipal law act of state’, which corresponded broadly to Lord Mance and Lord Neuberger’s types one and two; and (ii) ‘international law act of state’, corresponding with their third type. However, in his view, the ‘municipal law act of state’ rule could in fact cover ‘personal injury and other wrongs towards the person’ as well (para 231), in contrast with Lords Mance and Neuberger.
Lord Sumption also held that the acts of foreign states in the present claims were, prima facie, protected by the ‘foreign act of state’ doctrine. In his view, the acts of foreign states were central, rather than merely incidental, to the claims (para 242).
However, there was an important exception to both limbs of the doctrine. Lord Sumption argued that neither could apply when it ‘would be contrary to the fundamental requirements of justice administered by an English court’ (para 262). What would fall into this category? Any gross violation of international law or fundamental human rights (paras 248-257). Therefore, something (such as torture, in this case) that breaches jus cogens, i.e. the inviolable norms of international law, could not be protected by the doctrine.
Despite this difference of approach, all seven justices agreed that the ‘foreign act of state’ doctrine did not protect the appellants here. Either the allegations were such that the doctrine could not apply, or they were so serious that they fell within the public policy exceptions.
There are three things notable in this judgment. The first is the judges’ failure to come to a precise agreement on the principles governing the ‘act of state’ doctrine, despite their perspicacious and thorough examination of the authorities. Secondly, however, despite this disagreement, it was heartening to see our highest court put issues of public policy and fundamental human rights at the heart of their considerations. The court again demonstrates that it is unafraid to use normative values of human dignity and equality to guide its decisions.
The third interesting point is the way the judges dealt with the interaction of international and domestic law. Lord Neuberger suggested that, given the doctrine’s domestic origins, international law need not be a decisive factor in determining if something fell within his ‘public policy’ exception. Lord Sumption, however, in his thorough analysis of the authorities (paras 249-257), indicated that UK courts should not hesitate to actively engage and apply rules of international law in deciding the ‘public policy’ question.
This case therefore fits into a long line of authorities stretching back to Triquet v Bath (1764) 3 Burr 1478 suggesting that domestic courts should not shy away from looking outwards, as well as inwards, in formulating their decisions.