Roundtable on Rahmatullah and Belhaj:Crown and foreign act of state in English law

5 May 2017, 1.00 PM - 5 May 2017, 4.30 PM

University of Bristol Law School, 8–10 Berkeley Square, Seminar Room 1.13.

Roundtable on Rahmatullah and Belhaj: Crown and foreign act of state in English law

 

Organized by Eirik Bjorge, University of Bristol and Ewan Smith, University of Oxford

In two recent judgments the Supreme Court has demarcated the boundary between non-justiciability and the rule of law.

In Rahmatullah (No 2) & Serdar Mohammed v Ministry of Defence [2017] UKSC 1 the Supreme Court dismissed tort law claims issuing from purportedly unlawful detention by UK forces, on the ground of Crown Act of State. The Crown cannot, held the Supreme Court, be sued at common law for certain sovereign acts committed abroad against foreign states or their subjects. Did the Court succeed at explaining the Crown Act of State, and its relationship with the rule of law, in a comprehensive manner? Can the decision be explained on the basis of the constitutional orthodoxy that, just as courts cannot adjudicate upon treaties operating only at the international level, so too they will not adjudicate on these “inherently governmental” acts? What of denial of justice? And what if the situation cannot easily be brought before courts elsewhere. With a view to avoiding a denial of justice, the International Court of Justice will not for its part cede jurisdiction to another tribunal, or ‘allow its own competency to give way’, unless it has satisfied itself that it is ‘sufficiently clear’ that the other body would in fact have jurisdiction, thus making sure that any ‘danger of a denial of justice’ is obviated (Maritime Delimitation in the Indian Ocean [2017] ICJ Rep, para 132).

In Belhaj v Sir Jack Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3 the Supreme Court had to deal with whether, in proceedings against UK persons, UK courts could investigate the propriety of foreign acts of foreign states. Holding that the underlying principle, in this case, was one of judicial restraint, did the Court take the view that the threshold for finding that the matter was justiciable was higher in relation to a foreign Act of State than in relation to a Crown Act of State? In the case in issue the Court could see no compelling reason why it should exercise restraint. These acts would not be justiciable anywhere, if the UK courts did not take jurisdiction over them.    Did the difference in outcome in the two cases turn simply on the different alleged acts at issue? The alleged acts in Belhaj and Rahmatullah (No 1) were illegal detention, rendition, and torture, whereas the alleged acts in Rahmatullah (No 2) & Serdar Mohammed involved detention of suspected insurgents for imperative reasons of security in the course of armed conflict. Or can we find a broader and more general account of the principle of judicial abstention in these cases?

 

Speakers:

 Dapo Akande, University of Oxford;

 Mads Andenas, University of Oslo;

 Sean Aughey, 11 King’s Bench Walk;

 Eirik Bjorge, University of Bristol;

 Maria Gavouneli, University of Athens;

 Julian Rivers, University of Bristol;

 Jane Rooney, University of Bristol;

 Ewan Smith, University of Oxford;

 Karen Steyn QC, 11 King’s Bench Walk.

Bench and Bar

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