oril template version 1.0 feb-08
Case ID: / ILDC 662 (UK 2002) / Version Date:Product(s) to appear in: / Last substantive update:
Report status:
Citations: / *The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom, The Secretary of State for Foreign and Commonwealth Affairs and The Secretary of State for Defence, Advisory declaration, [2002] EWHC 2777 (Admin); ILDC 662 (UK 2002), 17 December 2002*
Case name: / Party 1 / The Campaign for Nuclear Disarmament
Party 2 / · The Prime Minister of the United Kingdom
· The Secretary of State for Foreign and Commonwealth Affairs
· The Secretary of State for Defence
Party 3
Party 3 role:
Additional case name: / Name type:
Party 1
Party 2
Party 3
Party 3 role:
Other case name: / Name
Name type
Date: / 17 December 2002
Jurisdiction/Court/Chamber: / United Kingdom, High Court of Justice, Queen’s Bench Division (Divisional Court)
Judge(s): / Name / Nationality / Role / Opinion
Simon Brown / Leading Opinion
Maurice Kay / Concurring
Stephen Richards / Concurring
Procedural stage: / Advisory Declaration
Previous stages:
Subsequent stages:
Related developments:
Key subjects: / · Relationship between international and domestic law
· Universal international organizations and institutions
· Use of force, war, peace and neutrality
Keywords: / · International law and domestic law, consistent interpretation
· International organizations, resolutions
· International peace and security
· Intervention
· Ius ad bellum
· UN Security Council
· Use of Force
Core issues: / Whether a domestic court may determine the content of a SC Res with a view to guaranteeing that executive action is in conformity with international law.
Facts: / F1 On 8 November 2002 *Resolution 1441, UN Doc S/RES/1441; UN Security Council, 8 November 2002* was unanimously adopted by the UN Security Council. It afforded Iraq ‘a final opportunity to comply with its disarmament obligations’ (paragraph 2) and recalled that the Council had ‘repeatedly warned Iraq that it [would] face serious consequences as a result of its continued violations of its obligations’ (paragraph 13).
F2 CND wanted the court to rule that a potential future decision to go to war by the British government would be unlawful without a second Security Council resolution.[para 2] The application was confined to the determination of preliminary issues in the way of justicability, prematurity and standing- everything save the substantive point of international law. It is CND’s case that they are bringing this application solely to ensure that government do not at some future date embark upon military action against Iraq in the mistaken belief that it is lawful to do so when in fact it is not” [para 7]
F3 The Campaign for Nuclear Disarmament (‘CND’), having heard conflicting statements from the Foreign Secretary in the weeks surrounding the adoption of *Resolution 1441*, thought that there was ‘great public interest in ensuring that the government is adequately informed on this key question of law’.
F4 The CND contended that without a second Security Council resolution military action against Iraq would be unlawful and that the government’s apparent belief to the contrary showed that it had misdirected itself as regards the law on the question.
F5 Mr Singh, barrister for the applicant, used domestic cases to try and prove that ‘no longer are there any forbidden areas of executive action into which the courts simply cannot look’. The judgment in *Home Secretary v Rehman, Appeal judgment, [2001] 3 WLR 877, 11 October 2001* was used as an example of courts legitimately overturning an executive decision in the field of national security.[para 20] Moreover, *R v Lyons [2002] 3 WLR 1562* arguably showed that English courts will not rule upon the true meaning and effect of international instruments which apply only at the level of international law. [para 23] However the cases relied upon by CND actually undermined its argument as Lord Justice Simon Brown stated.
F6 In this case the defendants claimed that British national interests, international relations and government’s foreign policy could be detrimentally affected should it outline its legal position, as regards use of force against Iraq. If the court allowed the case to be heard then other states would know the British legal ‘bottom line’ and use that information to its advantage during the negotiations of a second resolution. [para 11] It was also stated that it could detrimentally affect negotiations of a second resolution. The High Court of England and Wales (‘EWHC’) agreed with these submissions and would not allow the case to proceed beyond preliminary issues. [para 12 and 41]
Held: / H1 The prohibition on the unlawful use of force was a peremptory norm of customary international law and as such part of the common law of England in the absence of any contrary statutory duty. [para 17] However, the court lacked jurisdiction to declare the true interpretation of an international instrument which had not been incorporated into English domestic law. [para 47 (i)]
H2 There was no point of reference in domestic law to which the international law issue could be said to have gone; there was nothing susceptible to challenge in the way of the determination of rights, interests or duties under domestic law to draw the court into the field of international law. [para 36]
H3 There was no distinction between the position of the United Kingdom and that of all other states to whom *Resolution 1441* applied. [para 37] The general rule was that, in the interests of comity, domestics courts did not rule on questions of international law which affected foreign sovereign states. [para 38]
H4 If to embark upon the determination of an issue would be damaging to the public interest in the field of international relations, national security or defence, courts should decline to do so.’ of an issue as to do so would be damaging to the public interest in the field of international relations, national security or defence. [para 47 (ii)]
H5 There was no sound basis for believing that the government had been wrongly advised as to the true position in international law. [para 47 (iii)]
H6 Justice Kay, concurring: stated that the proceedings were wholly public law based and furthermore that foreign policy and the deployment of armed forces remained non-justiciable. [para 49 and 50]
Analysis: / A1 The court held that prerogative powers and issues concerning the defence of the realm are not outside the scope of judicial review. Nevertheless the question of whether the courts may overturn an executive decision in the field of national security was contentious, especially when that decision had not even been made yet. The court was reluctant to judge a potential future decision to go to war.
A2 The situation was still developing and there was no clear indication of British foreign policy that the court could consider. Whilst the CND insisted that its claim was a pure question of law in that the courts should ‘ensure that those exercising public power have not erred in law in the classic sense of misunderstanding their legal powers’, the court remained unwilling to rule on whether a decision to go to war, if taken, would require a second Security Council resolution. [para 22] The court agreed that ‘on the international plane, as a matter of practical international politics, other States do not make nice distinctions between legal assertions by government and declarations of law by national courts’. If the government had to argue its position before the national court it would damage the conduct of its international relations.[para 43]
A3 As regards international law in domestic courts the EWHC recognised that it could consider customary international law as it is encompassed in common law. However specific treaties (including treaty obligations arising from Security Council resolutions) are not part of domestic law and therefore English courts will not rule on its true meaning. [para 37] This is important when considering decisions to go to war, especially when those decisions could be based on a Security Council resolution which domestic courts cannot question. Therefore British Parliament can decide that to enter a war without being held to account by the courts.
A4 In this case the EWHC was reluctant to review decisions of high policy, especially those involving decisions to go to war, whether these arise from direct challenge to the legality of the decision or where the challenge indirectly points to a review of the legality of the decision to go to war (as in *Gentle v Prime Minister, the Secretary of State for Defence and Attorney-General, Judgment, [2006] EWCA Civ 1690 (Civ Div), 12 December 2006*) {mentioned only in headnote}.
Further analysis:
Instruments cited: / International
· *Charter of the United Nations (26 June 1945) 59 Stat 1013; TS 993; 3 Bevans 1153, entered into force 24 October 1945*, *Article 51*
· *Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entered into force 27 January 1980*, *Article 31(3)(b)*
· *Resolution 1441, UN Doc S/RES/1441; UN Security Council, 8 November 2002*
Cases cited: / United Kingdom
· *Council of Civil Service Unions v Minister for the Civil Service, Appeal judgment, [1985] AC 374, 22 November 1984*
· *British Airways v Laker Airways, Appeal judgment, [1985] AC 58*
· *R v Home Secretary, Ex p Launder, Decision on extradition, [1997] 1 WLR 839, 21 May 1997* {discussed}
· *R v Director of Public Prosecutions, Ex p Kebilene, Appeal judgment, [2000] 2 AC 326, 28 October 1999* {discussed}
· *R v Home Secretary, Ex p Adan, Appeal judgment, [2001] 2 AC 477, 19 December 2000* {discussed}
· *Home Secretary v Rehman, Appeal judgment, [2001] 3 WLR 877, 11 October 2001* {discussed}
· *Marchiori v The Environment Agency and Others, Appeal judgment, [2002] EWCA Civ 03, 25 January 2002*
· *Abbasi v Secretary of State for Foreign and Commonwealth Affairs, Appeal judgment, [2002] EWCA Civ 1598, 6 November 2002* {discussed}
· *R v Lyons [2002] 3 WLR 1562* {discussed}
Reporter: / Christy Shucksmith
Report date: / 30 January 2011
Commentator: / Christy Shucksmith
Analysis date: / 30 January 2011