Moving into the mainstream
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24 January 2014
Public international law can no longer be ignored, with a number of international conventions making their way into domestic courts. Philippe Sands and Maurice Sheridan report on the most influential cases of the past year
The rules of public international law have been transformed over the past two decades. Treaties and other international legal obligations now address a wide range of issues, from human rights protection and labour standards to the promotion of free trade and the protection of foreign investment and intellectual property rights.
Other areas now subject to extensive international public regulation include refugees, the environment, transportation and maritime affairs, and key commercial activities such as the energy sector.
International legal obligations can impose powerful limits on the behaviour of the states which have subscribed to them, influencing the development and application of domestic legislation and other regulation, and the taking of administrative decisions. Many international laws also have implications for private sector activities.
As a result of these developments, public international law stands on the verge of becoming part of mainstream legal practice for barristers, solicitors and in-house counsel working for corporations and groups such as Human Rights Watch and Greenpeace.
Practise in public international law takes place at national and international levels, and the UK legal profession has a leading role before many of the international jurisdictions.
At the national level, there is some evidence that the UKcourts are increasingly willing to take account of arguments premised on international instruments, even if those instruments have not been formally incorporated into local law.
The Pinochet proceedings before the House of Lords may prove an important turning point, with the Law Lords relying extensively on international law - customary and conventional - to justify their conclusion that senator Pinochet was not entitled to immunity before the UKcourts.
Earlier this year, the Divisional Court relied on the 1957 Extradition Convention to support its judgment in favour of the Belgian government's claim that it was entitled to have access to Pinochet's medical records (see box one). And late last year, the High Court relied extensively on unincorporated international conventions to find in favour of Greenpeace's assertion that EC environmental obligations applied to oil and gas activities beyond the limits of UK territorial waters and up to the outer limits of the continental shelf.
Decisions of governmental authorities may now also be challenged before many international courts and tribunals. The best known and most widely reported are the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg. There are many others which are less well-known than the International Court of Justice (see box two).
Claims concerning interference with property rights are frequently taken to international arbitration before bodies such as the World Bank's International Centre for the Settlement of Investment Disputes (ICSID), which gives investors the right to bring proceedings directly against foreign governments.
The ICSID case of Tradex Hellas, brought by Greek investors against the Albanian government, illustrates what happens when inadequate attention is paid to substantive international law (see box three).
And it is not only central and eastern European and developing countries which are respondents in such cases - there are currently two cases pending against the US, one of which seeks to overturn decisions of US courts.
Other international courts which are assuming importance - although only available for interstate disputes - include the World Trade Organisation's dispute settlement panels and Appellate Body in Geneva and the International Tribunal for the Law of the Sea (ITLOS) in Hamburg.
ITLOS is a new international forum allowing for proceedings to be brought for the prompt release of arrested vessels, which also has competence to adopt binding injunctions. In August 1999, at the request of Australia and New Zealand, ITLOS ordered an immediate stop to Japanese scientific fishing of southern bluefin tuna (see box four). Japan complied with that order.
These and other examples represent significant instances of national and international courts giving effect to public international laws. The principles which lie behind these arguments in litigation apply equally in respect of advisory practice.
And it seems likely that the trend towards an enhanced role for public international law will be given a further boost in the UK by the Human Rights Act, as many of the rights under the European Convention on Human Rights are themselves informed by other norms of international law.
Philippe Sands is a barrister at Matrix Chambers and professor of international law at the University of London. Maurice Sheridan is a barrister at Matrix Chambers.
1. DIVISIONALCOURT(the UK)
R v Secretary of State for the Home Department ex parte The Kingdom of Belgium & ors, decision of 15 February 2000
In March 1999, the House of Lords ruled that senator Pinochet could not claim immunity for certain alleged offences amounting to "extradition crimes" in violation of the 1984 Torture Convention. In October 1999 Chile asserted that the senator's state of health meant he was unfit to stand trial. A medical report presented by specialists appointed by the Home Secretary agreed. Belgium sought disclosure of the report on the grounds that it was a state requesting Pinochet's extradition. The Home Secretary refused, inter alia, on the grounds that to disclose the report to Belgium would breach an undertaking of confidentiality given to the senator.
The court gave effect to the 1957 European Convention on Extradition (to which Belgium and the UK were party) and held that "fairness" in the extradition process under the convention and the 1989 Extradition Act required disclosure of the report to Belgium and three other requesting states.
The case illustrates the the role that an international convention may have on a domestic court's approach to judicial review. The judgment noted the alleged crimes were against not only the laws of particular states but the laws of all nations, and indicated that the integrity of the criminal justice system needed to be demonstrated.
3. INTERNATIONALCENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES(ICSID)
Tradex Hellas SA v Albania, award of 29 April 1999
In 1991, Tradex Hellas entered into a joint venture with an Albanian state-owned agricultural company. In 1993, the joint venture was dissolved. In 1994, Tradex brought a claim before ICSID alleging that Albania had expropriated its interest in the joint venture and claimed compensation. Tradex alleged, inter alia, that land at the farm had been transferred by state act to local villagers, that various movable items had been stolen by the villagers and that the dissolution had been forced on it.
The tribunal rejected Tradex's entire claim. It ruled that basic rules of international law on expropriation require a "compulsory transfer of property rights" which must be attributable to the state. The tribunal found that prior to the agreed dissolution, no state act transferred the land or interfered with its use by the joint venture, and that no "taking" of any land or items by villagers could be laid at the door of Albania. Any acts which might have taken place were the acts of private persons. The dissolution was consensual. Tradex failed on nearly all counts to meet another basic rule of international law of procedure - that it had the burden of proving its claim. The case presents a salutary reminder of the need to be fully knowledgeable of the relevant international rules before embarking on international proceedings to challenge the legality of the "acts" of a foreign government.
Republic of Croatia v Federal Republic of Yugoslavia, application dated 2 July 1999
Indicating the growing recourse to the International Court of Justice as one of more than 20 proceedings started before the court in a little over two years, the application by Croatia against the Federal Republic of Yugoslavia raises issues of the most serious nature in public international law - the responsibility of a state for alleged acts of genocide attributable to it.
Croatia's application is for a declaration that the Federal Republic of Yugoslavia has violated the 1948 Genocide Convention and an order that it pay reparation to Croatia, as a state and as parens patriae for its citizens, for the damage that was caused to persons and their property, and to the economy and the environment of Croatia.
Croatia's claims arise out of violent acts conducted in the region between 1991 and 1995, said to be attributable to the Federal Republic of Yugoslavia, resulting in the death of some 20,000 people, with some 55,000 injured and more than 3,000 persons still unaccounted for, as well as the extensive destruction of property and the effects on the Croatian economy and environment.
4. INTERNATIONALTRIBUNAL FOR THE LAW OFTHESEA (ITLOS)
The southern bluefin tuna cases - New Zealand v Japan, Australia v Japan, order of 27 August 1999
Southern bluefin tuna (SBT) is a highly migratory species whose stock is under serious threat from overfishing. Japan unilaterally adopted an experimental fishing programme which resulted in the country fishing beyond its allocated quota. New Zealand and Australia considered that the Japanese programme violated its obligations relating to the conservation and management of SBT under the 1982 Law of the Sea Convention, and brought proceedings to ITLOS to halt the programme. New Zealand and Australia asked the tribunal for provisional measures (an injunction) to stop the Japanese programme immediately.
In the face of scientific uncertainty and to avert further deterioration of the stock of SBT, the tribunal granted the provisional measure order. The tribunal justified its order as being necessary to avoid 'serious' (rather than 'irreparable' ) harm. The case provides a further example of the judicial resolution of disputes between states, described by one of the ITLOS judges as "one of the most pervasive phenomena of contemporary international life". It illustrates the potential for "international judicial review".