“It seems that there are at least three main issues of principle: (1) Does the domestic court have jurisdiction to deal with this claim? (2) If it does have jurisdiction, should it exercise it in the circumstances? (3) Does the claimant have the necessary locus standi? . . . I am entirely satisfied that mandatory orders would not be appropriate but, if the claim is allowed to go forward, and if there is any successful outcome some sort of declaratory relief may result. I am not persuaded that I should refuse permission without a court hearing submissions on jurisdiction and standing and whether on the facts as presented by the claimant, if there is jurisdiction and the claimant has standing, the court would exercise its jurisdiction. I do not grant permission, but direct that these three issues be decided not on the basis of arguability but as if permission had been granted limited to them. Due to their importance, the issue should be decided by a Divisional Court next term.”
“(a) To publicly denounce Israel’s actions in Operation Cast Lead and the construction of the Wall. (b) To suspend all SIEL approvals to Israel. (c) To suspend all UK government financial or ministerial assistance directly given to UK companies exporting military technology or goods to Israel. (d) To request that the EU suspend the EU-Israel Association Agreement on article 79 [of the Treaty] grounds [which are claimed to permit suspensions] and use best endeavours to ensure it is so suspended. (e) To seek out and suspend any other financial or military assistance given by the UK government to Israel. (f) To call a Conference of the Parties to be convened to address Israel’s grave breaches.”
“a. the exercise of universal jurisdiction to prosecute or extradite any individuals involved in grave breaches, b. the enforcement of the system for suppression of such breaches, c. significant diplomatic pressure, d. the introduction of measures to the Security Council under Chapter VII of the UN charter (the Security Council’s powers to maintain peace); e. clear public denunciation, f. lawful sanctions, g. application of pressure through withdrawal of preferential trading terms, or h. convening a meeting of the Conference of the Parties.” b. the enforcement of the system for suppression of such breaches, c. significant diplomatic pressure, d. the introduction of measures to the Security Council under Chapter VII of the UN charter (the Security Council’s powers to maintain peace); e. clear public denunciation, f. lawful sanctions, g. application of pressure through withdrawal of preferential trading terms, or h. convening a meeting of the Conference of the Parties.”
“The issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case.”
“Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognise the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to be the exercise of the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”
“When deciding an issue by reference to foreign law, the courts of this country must have a residual power, to be exercised exceptionally and with the greatest circumspection, to disregard a provision in the foreign law when to do otherwise would affront basic principles of justice and fairness which the courts seek to apply in the administration of justice in this country. Gross infringements of human rights are one instance, and an important instance, of such a provision. But the principle cannot be confined to one particular category of unacceptable laws. That would be neither sensible nor logical. Laws may be fundamentally unacceptable for reasons other than human rights violations.”
“This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at page 931D. Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case.”
“. . . it would be odd if the executive could, by means of that kind, acting in concert with other states, amend or modify specifically the criminal law, with all the consequences that flow for the liberty of the individual and rights of personal property. There are, besides, powerful reasons of political accountability, regularity and legal certainty for saying that the power to create crimes should now be regarded as reserved exclusively to parliament, by statute.”
“If the core elements of the crime are certain enough to have secured convictions at Nuremburg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international law or domestic law.”
“But there are well-established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law.”
“In Buttes, at p 933, Lord Wilberforce cited with approval the words of Fuller CJ in the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250, 252: "Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." I do not suggest that these rules admit of no exceptions: cases such as Oppenheimer v Cattermole[1976] AC 249 and Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5)[2002] 2 AC 883 may fairly be seen as exceptions. Nor, in the present context, is the issue one of justiciability, to which many of these authorities were directed. In considering whether the customary international law crime of aggression has been, or should be, tacitly assimilated into our domestic law, it is nonetheless very relevant not only that Parliament has, so far, refrained from taking this step but also that it would draw the courts into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection.”
“To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the court of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.' ”
“. . . albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.”
“. . . in apparent contravention of fundamental principles recognised by both jurisdictions [United States and England & Wales] and by international law, Mr Abbasi is at present arbitrarily detained in a 'legal black-hole'.”
“The citizen's legitimate expectation is that his request will be ‘considered’, and that in that consideration all relevant factors will be thrown into the balance.”
“The extreme case where judicial review would lie in relation to diplomatic protection would be if the Foreign and Commonwealth Office were, contrary to its stated practice, to refuse even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated. In such, unlikely, circumstances we consider that it would be appropriate for the court to make a mandatory order to the Foreign Secretary to give due consideration to the applicant's case.”
“As for standing, again, were the court to regard it an appropriate exercise of its jurisdiction to advise government as it is here invited to do, it would hardly be right to withhold that advice by reference to some suggested deficiency in CND's interest in the matter.”
“This principle is not one of discretion, but is inherent in the very nature of the judicial process”
“Should the court declare the meaning of an international instrument operating purely on the plane of international law? In my judgment the answer is plainly no. All of the cases relied upon by the applicants in which the court has pronounced upon some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law.”
“. . . there is in the present case no point of reference in domestic law to which the international law issue can be said to go; there is nothing here susceptible of 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 . . . 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 United Kingdom’s conduct on the international plain.”
“There are rules that, in this context at least, the courts have imposed upon themselves in recognition of the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibilities of the executive under our constitutional settlement. The objections on grounds of non- justiciability therefore provide a separate and additional reason for declining to entertain the claim.”
“The simple point, as it seems to me, is that the court should steer away from these areas of potential difficulty in relation to other states unless there are compelling reasons to confront them. There are no such reasons in this case.”
“Absent the Convention, the starting point is the proposition that issues relating to the conduct of international relations and military operations outside the United Kingdom are not justiciable. That proposition is supported by two further propositions. The first is that constitutionally such matters lie within the exclusive prerogative of the executive and the second is that they are governed by international and not domestic law.”
“This is not to say that if the appellants have a legal right the courts cannot decide it. The respondents accept that if the appellants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude. They do, however, say, in my view rightly, that in deciding whether a right exists it is relevant to consider what exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy - peace and war, the making of treaties, the conduct of foreign relations - does tend to militate against the existence of the right: R v Jones (Margaret)[2006] UKHL 16 ,[2007] 1 AC 136 ,”