‘General restriction on control powers (1) Subject to section 6, the power to impose export controls, transfer controls, technical assistant controls or trade controls may only be exercised where authorised by this section. (2) Controls of any kind may be imposed for the purpose of giving effect to any EU provision or other international obligation of the United Kingdom. (3) … (4) Export controls may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls. …’
‘The carrying out anywhere in the world of (or of acts which facilitate)— (a) acts threatening international peace and security; (b) acts contravening the international law of armed conflict; (c) internal repression in any country; (d) breaches of human rights.’ (a) acts threatening international peace and security; (b) acts contravening the international law of armed conflict; (c) internal repression in any country; (d) breaches of human rights.’
‘HM Government is committed to a robust and transparent export control regime for military, dual-use and other sensitive goods and technologies. The purpose of these controls is to promote global security and facilitate responsible exports. They help to ensure that goods exported from the United Kingdom do not contribute to the proliferation of weapons of mass destruction (WMD) or a destabilising accumulation of conventional weapons. They protect the United Kingdom’s security and our expertise by restricting who has access to sensitive technologies and capabilities. Export controls also help ensure that controlled items are not used for internal repression or in the commission of serious violations of international humanitarian law. They are one of the means by which we implement a range of international legal commitments including the Arms Trade Treaty.’
‘CRITERION ONE Respect for the UK’s international obligations and relevant commitments, in particular sanctions adopted by the UN Security Council, agreements on non-proliferation and other subjects, as well as other international obligations. The Government will not grant a licence if to do so would be inconsistent with, inter alia: a) the UK’s obligations and its commitments to enforce United Nations and Organisation for Security and Co-operation in Europe (OSCE) sanctions, as well as national sanctions observed by the UK and other relevant commitments regarding the application of strategic export controls; b) the UK’s obligations under the United Nations Arm Trade Treaty; c) the UK’s obligations under the Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention; d) the UK’s obligations under the United Nations Convention and Certain Conventional Weapons, the Convention on Cluster Munitions (the Oslo convention), theCluster Munitions (Prohibitions) Act 2010 , and the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on theirDestruction (the Ottawa convention) and the Land Mines Act 1998 ; e) the UK’s commitments in the framework of the Australia Group, the Missile Technology Control Regime, the Zangger Committee, the Nuclear Suppliers Group, and the Wassenaar Arrangement; f) the OSCE principles governing conventional arms transfers. CRITERION TWO Respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law. Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, the Government will: a) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate internal repression; Internal repression includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment; summary or arbitrary executions; disappearances; arbitrary detention, and other serious violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights. For these purposes items which might be used for internal repression will include, inter alia, items where there is evidence of the use of these or similar items for internal repression by the proposed end-user, or where there is reason to believe that the items will be diverted from their stated end-use or end-user and used for internal repression. The nature of the items to be transferred will be considered carefully, particularly if they are intended for internal security purposes. b) Exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN or the Council of Europe; Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, the Government will: c) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law. In considering the risk that items might be used to commit or facilitate internal repression, or to commit or facilitate a serious violation of international humanitarian law, the Government will also take account of the risk that the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children.’
‘The application of these Criteria will be without prejudice to the application to specific cases of specific measures as may be announced to Parliament from time to time.’
‘As noted above, whether such conduct is indicative of a risk of genocide or is rather the result of an intensive armed conflict in a densely populated urban area, turns primarily on an assessment of whether Israel’s actions are motivated by genocidal intent. This is a judgment that must be made with reference to the totality of the relevant information, including the pattern of conduct and statements made.’
‘Recent developments do not significantly alter the basis on which ECJU has previously assessed that exports to Israel remain consistent with the UK’s obligation to prevent genocide. The key judgment remains whether the conduct capable in principle of satisfying the physical component of genocide is the result of an intensive armed conflict in a densely populated urban area, or conversely whether the pattern of conduct and statements made are now considered to approach the high threshold required to indicate genocidal intent. Noting the high threshold – i.e. that genocidal intent has to be the only reasonable inference that can be drawn from the pattern of conduct and from statements made – and the plausible alternative explanation that the impacts seen are the result of its legitimate military campaign, ECJU maintains its assessment that extant licences to Israel remain consistent with the UK’s duty to prevent genocide. The conclusion that Israel has not demonstrated genocidal intent is consistent with the finding of the Foreign Secretary based on the latest IHLCAP assessment that Israel remains committed to comply with IHL.’
‘With respect to the duty to prevent genocide, a finding that Israel is not committed to comply with IHL does not necessarily indicate that it is harbouring genocidal intent. The current IHL assessment notes that concerning Israeli statements seen towards the start of the conflict have not been repeated in the same vein. There have been a range of positive statements and some negative statements from specific actors; however, their remarks are not assessed to be representative of the Israeli Government overall. The areas of most acute concern with respect to compliance with IHL do not relate to Israel making civilians the object of attack. No evidence has been seen that Israel is deliberately targeting civilian women or children. There is also evidence of Israel making efforts to limit incidental harm to civilians.’
‘Option 1: Suspend extant export licences where we assess the items are for use in military operations in the current conflict in Gaza. Option 2: Suspend all extant licences for use by the Israeli Defence Force (IDF), including those which we do not assess are for use in the current conflict in Gaza. This would constitute a decision to send a political signal, since it would go beyond strict application of the “clear risk” test in the Strategic Export Licensing Criteria (SELC).’
‘Advice 24. As Secretary of State for Business and Trade, you are the ultimate decision maker on export licences. You can choose to apply the SELC consistently against F-35 cases, including the requirement not to grant or sustain a licence where there is a clear risk that exported UK F-35 components under licence might be used to commit or facilitate a serious violation of IHL. 25. Alternatively, it is open to you to decide to depart from the SELC for F-35 components and, effectively, exclude them from the scope of any suspension. This decision would be in line with the Written Ministerial Statement that issued the SELC in 2021, which provided that the application of the SELC would be quote without prejudice to the application to specific cases of specific measures as may be announced to Parliament from time to time.’
‘Due to the nature of the partnership agreed at the outset of the international collaborative programme and enshrined in the F-35 Memorandum of Understanding The Memorandum was not disclosed in OPEN but was referred to in the CLOSED evidence. it is not currently possible to suspend licensing F-35 components for use by Israel without having an impact on the entire F-35 programme. … A suspension of UK licensing for all F-35 nations, leading to the consequent disruption for partner aircraft, even for a brief period, would have a profound impact on international peace and security. …’
‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’
‘Article 6 Prohibitions 1. A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if the transfer would violate its obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes. 2. A State Party shall not authorize any transfer of conventional arms covered under Article 2(1) or of items covered under Article 3 or Article 4, if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms. 3. A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party. Article 7 Export and Export Assessment 1. If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), assess the potential that the conventional arms or items: (a) would contribute to or undermine peace and security; (b) could be used to: (i) commit or facilitate a serious violation of international humanitarian law; (ii) commit or facilitate a serious violation of international human rights law; (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party. 2. The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1, such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States. 3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export. 4. The exporting State Party, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children. …’
‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’
‘(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’
‘Article 16 Aid or assistance in the commission of an internationally wrongful act A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. Article 41 Particular consequences of a serious breach of an obligation under this chapter 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.’
‘90. … It is firmly established that United Kingdom courts have no jurisdiction to interpret or apply international treaties: see, for example, JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry[1990] 2 AC 418 , 499 and R v Lyons[2003] 1 AC 976 , para 27. As was made clear in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening)[2009] AC 756 , it is therefore inappropriate for the courts to purport to decide whether or not the executive has correctly understood an unincorporated treaty obligation.’
‘65. One further factor is also important. In carrying out a review of a discretionary decision by the person entrusted by Parliament to take that decision, and in particular when assessing the reasonableness of a decision, a court or tribunal will always attach weight to the assessment made by the primary decision-maker. That is a matter of particular significance in the present context, for two reasons, which might be described as institutional and constitutional. 66. Institutionally, the Secretary of State acts on the basis of expert advice, including advice from the Security Service. The assessment of intelligence depends on an expertise which serving intelligence officers possess, but judges do not: expertise, for example, in assessing the reliability of information received from covert sources, based on such matters as the past record of informants, their motivation and their current circumstances, or the likelihood that the breaking of codes or encryptions has been detected, or that the presence of listening devices has been suspected; and expertise in the interpretation of a mosaic of individual items of information. Even persons formerly involved in intelligence work, such as some of the members of SIAC, are unlikely to be as well placed to assess such information as serving officers, because they will have no close or current involvement with the sources of that information and the factors bearing on its reliability. 67. There are in addition constitutional reasons why public safety should be primarily the responsibility of a member of the government who is accountable to Parliament, and ultimately to the electorate, rather than the responsibility of the members of a judicial tribunal, however eminent and experienced they may be. As Lord Hoffmann said in Rehman, in a postscript to his speech written after the 9/11 attacks on the United States, “such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process” (para 62). 68. Accordingly, there are both institutional and constitutional reasons why, in carrying out its function of reviewing decisions taken on grounds of national security, SIAC should attach very considerable weight to the Secretary of State’s evaluation.’
‘46. Constitutionally, the conduct of foreign affairs is exclusively within the sphere of the executive (Jones, Gentle in the Court of Appeal, Abbasi). While there may, exceptionally, be situations in which the court will intervene in foreign policy issues, this case is far from being one of them. The two strands considered, the nature of the underlying claim, that is condemnation of Israel, and the nature of the claim against the Government, that is a direction or declaration as to what foreign policy it should follow, operate together to demonstrate that the court should not be prepared to consider it.’
‘36. … As Mr Sales [counsel for the Prime Minister] points out, 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 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 the United Kingdom’s conduct on the international plane. That is for the International Court of Justice. Mr Singh [counsel for CND] was quite unable to point to any case in which the domestic courts have ruled on a matter of international law in no way bearing on to the application of domestic law. … 40. Here there is simply no foothold in domestic law for any ruling to be given on international law. …’
‘54. In the few cases where the courts have pronounced on matters of high policy there was what has been termed a domestic foothold. There was either legislative authorisation (see Gentle, [26]); the foreign legislation in issue was in the most blatant breach of international norms: (Oppenheimer v Cattermole[1976] AC 249 , 278 C; Kuwait Airways Corporation v Iraqi Airways Co(Nos 4 and 5)[2002] 2 AC 883 ); or the issue arose in the context of ensuring a fair trial in the courts of England and Wales (A v Secretary of State for the Home Department (No 2)[2006] AC 221 ). The claimant advances asylum claims to justify its contention that these matters are justiciable, but there courts make findings about matters such as a well founded fear of persecution in other states because they are authorised to do so under domestic legislation.’
‘207. Whether or not Ukraine had a right in international law to take legitimate countermeasures against the Russian Federation on the international plane, such a right cannot assist Ukraine in these proceedings. The principles of international law governing the rights of states to take countermeasures are, pre-eminently, rules addressed to the conduct of states amongst themselves on the international plane. They are in general not justiciable before courts in this jurisdiction for two reasons. First, English law does not recognise a defence reflecting the availability of countermeasures on the international plane. The parties selected English law as the law governing their contracts and the exclusive jurisdiction of the English courts and the asserted defence has no foothold in domestic law. (See R (Al-Haq) v. Secretary of State for Foreign and Commonwealth Affairs per Pill LJ at paras 44 and 45; per Cranston J at paras 53-55). Ukraine’s case on countermeasures is, quite simply, irrelevant to the determination of the rights and duties arising in English law in relation to the Notes. To employ the terminology of Lord Mance in Keyu, there is here no applicable rule of common law which the courts themselves can sensibly adapt to reflect customary international law. That in itself is a complete answer to Ukraine’s plea founded on countermeasures. Secondly, the subject matter of such inter-state disputes is inherently unsuitable for adjudication by courts in this jurisdiction. If the availability of countermeasures at the level of international law were accepted as giving rise to a defence in domestic law, national courts would become the arbiter of inter-state disputes governed by international law which is not their function. They would be required to rule on the legality of conduct of states on the international plane and whether it constituted an internationally wrongful act. In the present case, Ukraine accepts that, according to its case, at trial a court in this jurisdiction would not be bound by the views of the executive in the United Kingdom but would be required to make its own assessment on the basis of evidence led as to the legality in international law of Russia’s invasion and annexation of Crimea. In addition, it would be required to assess the proportionality of the response, taking account of the gravity of the internationally wrongful act and the rights in question. Accordingly, at trial, the court would have to assess the impact of Russia’s conduct, including its effect on the productive economic capacity of Ukraine. In our view, Ukraine’s case on countermeasures falls prima facie within the principle of non-justiciability of inter-state disputes identified by Lord Wilberforce in Buttes Gas, pp 931-938. We acknowledge that this second objection may, in certain circumstances, be subject to exceptions founded on the public policy of the domestic forum. (See Kuwait Airways, Belhaj v Straw and the judgment of the Court of Appeal in the present proceedings.) This is a matter on which it has not been necessary to express a concluded view on this appeal. (See para 191 above.) However, the first objection is in our view an insuperable obstacle to the importation into domestic law within the United Kingdom of the international law principles of countermeasures for which Ukraine contends. 208. Accordingly, we conclude that in these proceedings Ukraine has no arguable defence based on any right it may have in international law to take countermeasures on the international plane.’
‘47. I would state my conclusions in summary form as follows: (i) The court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person’s rights or duties under domestic law. That is the position here. (ii) The court will in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence. That too is the position here. Whether as a matter of juridical theory such judicial abstinence is properly to be regarded as a matter of discretion or a matter of jurisdiction seems to me for present purposes immaterial. Either way I regard the substantive question raised by this application to be non-justiciable.’ (i) The court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person’s rights or duties under domestic law. That is the position here. (ii) The court will in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence. That too is the position here. Whether as a matter of juridical theory such judicial abstinence is properly to be regarded as a matter of discretion or a matter of jurisdiction seems to me for present purposes immaterial. Either way I regard the substantive question raised by this application to be non-justiciable.’
‘25. There have been a number of cases in which the terms of the Secretary of State’s guidance about the treatment of victims of trafficking have been challenged on the basis that they did not give proper effect to the requirements of chapter III of ECAT. It has in all these cases been recognised that the claimants could not rely on the provisions of chapter III as such since ECAT has not been incorporated in domestic legislation: it is trite law that international treaties are not justiciable by the Courts, in the sense that they create no enforceable rights, except to the extent that they are so incorporated – see the classic exposition of Lord Oliver in J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry[1990] 2 AC 418 , at pp. 499-500. Rather, the claimants have contended that the Secretary of State had declared that in promulgating the Guidance it was her intention to give effect to the UK’s relevant obligations under ECAT; and that if, on the Court’s construction of the relevant provisions, she had failed to do so, she had misdirected herself as to a material consideration and was liable to judicial review on ordinary public law principles. The Secretary of State has generally acknowledged that that was a proper approach. ….’
‘36. … In each case it was decided or conceded that, as a matter of fact - this was in fact the Defendant's policy - and construction - this is what her policy documents said - the Defendant had committed to making the relevant decision in accordance with the requirements of the relevant article(s) of the ECAT. It was therefore permissible for the court, applying conventional public law principles, to consider what the requirements of those articles were with a view to deciding whether the policy correctly stated their effect and whether a given decision, taken in accordance with that policy, was lawful. This did not involve direct enforcement of an unincorporated treaty as the treaty was not the source of the obligation contended for. Nor did it involve the filling of lacunae, as Mr Tam [counsel for the Secretary of State] submitted, given that the claimants in those cases relied on what was said in the policy documents.’
‘34. The upshot of all this is that in the end we did not have to hear submissions on the justiciability issue. I should say, however, that I find Linden J’s analysis convincing and that I entirely agree with his conclusions quoted at para. 32 above. …’
‘If there was room for doubt on this matter, I would regard this as a case where great caution would have to be exercised, despite the need for anxious scrutiny, therefore holding that decision to be one which, in the relevant sense was unreasonable. But in all the all circumstances, I do not think that there is any real room for doubt.’
‘It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham MR in Regina v Ministry of Defence, ex parte Smith[1996] QB 517 , 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the respondent in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Regina v Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 151, as Sir Thomas Bingham MR also recognised in Smith at p. 554H. Then there is the question whether judicial review proceedings can provide the respondent with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v United Kingdom [1989] 11 EHHR 439; Vilvarajah v United Kingdom [1991] 14 EHHR 248; D v United Kingdom, The Times,12 May 1997 . If the applicant is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument.’ (Emphasis added).
‘The great British public may still believe that it was the risk to British commercial interests which caused [the Director] to give way but the evidence is quite clear that this was not so. He only gave way when he was convinced that the threat of withdrawal of Saudi security co-operation was real and that the consequences would be an equally real risk to “British lives on British streets”.’ , the Attorney General made a statement to Parliament explaining that it had been taken in the UK public interest for national security reasons. He pointed out that Article 5 of the 1997 OECD Convention on Combating Bribery of Public Officials in International Business Transactions precluded him and the Director from taking into account considerations of the national economic interest or the potential effect upon relations with another state in reaching the decision to terminate the investigation and added that ‘we have not done so’
‘44. In support of step (1) in this argument reliance was placed in particular on R v Secretary of State for the Home Department, Ex p Launder[1997] 1 WLR 839 , 866-867 and R v Director of Public Prosecutions, Ex p Kebilene[2000] 2 AC 326 , 341-342, 367, 375-376. Both cases concerned decision-makers claiming to act consistently with the European Convention at a time when it had not been given effect in domestic law. The courts accepted the propriety of reviewing the compatibility with the Convention of the decisions in question. But there was in the first case no issue between the parties about the interpretation of the relevant articles of the Convention, and in the second there was a body of Convention jurisprudence on which the courts could draw in seeking to resolve the issue before it. Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the UK by fear that their decisions might be held to be vitiated by an incorrect understanding.’
‘65. Although, as I have acknowledged, there are occasions when the Court will decide questions as to the state's obligations under unincorporated international law, this, for obvious reasons, is generally undesirable. Particularly this is so where, as here, the Contracting Parties to the Convention have chosen not to provide for the resolution of disputed questions of construction by an international court but rather (by article 12) to create a Working Group through whose continuing processes it is hoped a consensus view will emerge. Really this is no more than to echo para 44 of Lord Bingham's opinion. For a national court itself to assume the role of determining such a question (with whatever damaging consequences that may have for the state in its own attempts to influence the emerging consensus) would be a remarkable thing, not to be countenanced save for compelling reasons. 66. Are there such compelling reasons here? In my judgment there are not. There seem to me to be very real differences between this case and both Launder and Kebilene. In the first place, as Lord Bingham points out at para 43, there is a marked distinction between seeking to apply established Convention jurisprudence to the particular case before the court (as there) and determining, in the absence of any jurisprudence whatever on the point, a deep and difficult question of construction of profound importance to the whole working of the Convention (as here). Secondly, it seems to me tolerably plain that the decision-makers in both Launder and Kebilene, deciding respectively on extradition and prosecution, would have taken different decisions had their understanding of the law been different. In each case the decision-maker clearly intended to act consistently with the UK's international obligations whatever decision that would have involved him in taking. That, however, was not the position here. Although both the Director (and the Attorney General) clearly believed—and may very well be right in believing—that the decision was consistent with article 5, it is surely plain that the primary intention behind the decision was to save this country from the dire threat to its national and international security and that the same decision would have been taken even had the Director had doubts about the true meaning of article 5 or even had he thought it bore the contrary meaning. All that he and the Attorney General were really saying was that they believed the decision to be consistent with article 5. This clearly they were entitled to say: it was true and at the very least obviously a reasonable and tenable belief. Both the Director's and Attorney General's understanding of article 5 was clearly apparent from their public statements: it was implicit in these that they understood article 5 not to preclude regard being had to fundamental considerations of national and international security merely because these would be imperilled by worsening relations with a foreign state. 67. The critical question is not, as the respondents' arguments suggest, whether the Director's successor would make the same decision again once the Courts had publicly stated that this would involve a breach of the Convention; rather it is whether the Court should feel itself impelled to decide the true construction of article 5 in the first place. It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state's international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue. For the reasons I have sought to give it would certainly not be appropriate to do so in the present case.’
‘146. In the light of relevant authority it seems clear that deciding whether the “tenability” approach is the appropriate means of reviewing the Government’s understanding of an unincorporated international obligation will always depend on the circumstances of the individual case. The domestic courts have been inclined to caution in this area, heeding the constitutional and practical difficulties that can arise when the court sets about interpreting unincorporated treaties for itself (see the speeches of their Lordships in Corner House, at [44], [65], [66] and [68]; the judgment of Lord Sumption in Benkharbouche, at [35]; and the judgment of this court in UKEF I.e. Friends of the Earth. , at [26], [29], [49] and [50]. 147. Without seeking to lay down an exhaustive or definitive list, one can take from the case law some of the factors that the domestic courts have found significant. Seven considerations emerge: first, any previous case law or guidance on the interpretation of the obligation in question (Lord Bingham in Corner House, at [44], and Lord Brown, at [66]; and the judgment of this court in UKEF, at [50 (iii)]); second, the effect the interpretation will have on the conduct of international relations (Lord Bingham in Corner House, at [44]; and Lord Sumption in Benkharbouche, at [35]); third, the availability of other means to derive the interpretation of the obligations in question (Lord Bingham in Corner House, at [45]; and Lord Brown, at [65]); fourth, the importance of the interpretation to the operation of the treaty or international obligation (Lord Brown in Corner House, at [66]); fifth, the difficulty of interpreting, or ambiguity in the terms of, the obligation (Lord Brown in Corner House, at [66]; and Lord Sumption in Benkharbouche, at [35]); sixth, the question whether the correct interpretation is necessary to decide a justiciable issue (Lord Sumption in Benkharbouche, at [35]); and seventh, the question whether the decision-maker was compelled by domestic law to take into account the obligations in question (the judgment of this court in UKEF, at [40(iii)] and [50(ii)]).’
‘113. Lord Neuberger considered that the domestic cases suggested that there may be four possible rules which had been treated as aspects of the doctrine. (1) The first rule (“Rule 1”) is that the courts of this country will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state ([2017] AC 964 , para 121). (2) The second rule (“Rule 2”) is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state (at para 122). (3) The third rule (“Rule 3”) has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not to rule on it. Examples are making war and peace, making treaties and the annexation and cession of territory. Similarly, the courts of this country will not, as a matter of judicial policy, determine the legality of acts of a foreign government in the conduct of foreign affairs (para 123). (4) A possible fourth rule (“Rule 4”), described by Rix LJ in Yukos Capital SARL v OJSC Rosneft Oil Co (No 2)[2012] EWCA Civ 855 ;[2014] QB 458 , para 65, is that “the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country: but that this doctrine only arises as a result of a communication from our own Foreign Office” (para 124). …’ (1) The first rule (“Rule 1”) is that the courts of this country will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state ([2017] AC 964 , para 121). (2) The second rule (“Rule 2”) is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state (at para 122). (3) The third rule (“Rule 3”) has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not to rule on it. Examples are making war and peace, making treaties and the annexation and cession of territory. Similarly, the courts of this country will not, as a matter of judicial policy, determine the legality of acts of a foreign government in the conduct of foreign affairs (para 123). (4) A possible fourth rule (“Rule 4”), described by Rix LJ in Yukos Capital SARL v OJSC Rosneft Oil Co (No 2)[2012] EWCA Civ 855 ;[2014] QB 458 , para 65, is that “the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country: but that this doctrine only arises as a result of a communication from our own Foreign Office” (para 124). …’
‘237. Turning to international law act of state, the position is different. Where the question is the lawfulness of a state’s acts in its dealings with other states and their subjects, the act of state doctrine applies wherever the relevant act of the foreign state occurs (save, arguably, if it occurred in the United Kingdom: see A Ltd v B Bank[1997] FSR 165 at para 13). The reason is, again, inherent in the principle itself. It is not concerned with the lawfulness of the state’s acts under municipal systems of law whose operation, in the eyes of other states, is by definition territorial, but with acts whose lawfulness can be determined only by reference to international law, which has no territorial bounds. In the nature of things a sovereign act done by a state in the course of its relations with other states will commonly occur outside its territorial jurisdiction. States maintain embassies and military bases abroad. They conduct military operations outside their own territory. They engage in intelligence-gathering. They operate military ships and aircraft. All of these are sovereign acts. The paradigm cases are acts of force in international space or on the territory of another state. “Obvious examples”, as Lord Pearson observed in Nissan v Attorney General[1970] AC 179 , 237, “are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory”.’
‘204. …the application by courts in this jurisdiction of rules of international law is clearly restricted by domestic constitutional principles, including principles of non-justiciability. Moreover, it is not possible to make sweeping deductions from broad statements of principle. The relationship between customary international law and the common law in this jurisdiction is far more complex. (See the judgment of the Divisional Court in R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs[2016] EWHC 2010 (Admin) at para 166.) It seems preferable, therefore, to regard customary international law not as automatically a part of the common law but as a source of the common law on which courts in this jurisdiction may draw as appropriate. (See R v Jones (Margaret)[2007] 1 AC 136 per Lord Bingham at para 11; Crawford, Brownlie’s Principles of International Law, 9th Ed (2019), pp 58-67.) As part of this process they will have to consider whether there may exist any impediments or bars to giving effect to customary international law as a result of domestic constitutional principles. Moreover, as Lord Mance pointed out in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs[2015] UKSC 69 ;[2016] AC 1355 (at para 149), it appears that judges in this jurisdiction may face a policy issue as to whether to recognise and enforce a rule of customary international law. However, given the generally beneficent character of customary international law, the presumption should be in favour of its application. …’
‘31. To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris): see conclusions 8 and 9 of the International Law Commission's Draft Conclusions on Identification of Customary International Law (2016). There has never been any clearly defined rule about what degree of consensus is required. The editors of Brownlie's Principles of Public International Law, 8th ed (2012), 24, suggest that “complete uniformity of practice is not required, but substantial uniformity is”. This accords with all the authorities. In the words of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14, para 186: “The court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.” What is clear is that substantial differences of practice and opinion within the international community upon a given principle are not consistent with that principle being law: see Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116, 131.’
‘(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions, the first protocol or the third protocol shall be guilty of an offence. (1A) For the purposes of subsection (1) of this section- (a) a grave breach of a schedule convention is anything referred to as a grave breach of the convention in the relevant Article, that is to say- … (iv) in the case of the convention set out in the Fourth Schedule to this Act, Article 147…’
‘Grave breaches … shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, … wilfully causing great suffering or serious injury to body or health, … unlawful confinement, of a protected person, … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully or wantonly.’
‘I do not believe that Parliament intended to provide an absolute right to the relevant information “come what may”. The possible consequences of a contrary conclusion are in my judgment quite horrifying. The instant case concerns a double killer with an abnormal personality. The circumstances of the second killing in particular cannot fail to arouse a very real and present apprehension for the safety of the as yet unidentified natural mother of the applicant. It is not too extreme to say that to identify her to him might even be tantamount to signing her death warrant. Public policy surely cannot permit that.’
‘some concern as to whether we should even accept what [counsel] is prepared to concede, as it would have wide consequences’ (403C); continuing at 403E-H: ‘A principle that statutory duties, although apparently absolute, will not be enforced if performance of them would enable a person to commit a serious crime or to cause serious harm is fraught with difficulty. … There is, moreover, a practical distinction between declining to enforce a statute when to do so would enable the person to benefit from serious crime in the past (as in Reg. v Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758 and … Puttick …) and declining to enforce a statute because it is apprehended that to do so would facilitate serious crime in the future. In the former case one can tell with reasonable certainty what the consequence of enforcement would be; in the latter, it may be a matter of speculation.’
‘I am persuaded that some such principle exists and that [counsel’s] concession was rightly made. If it be the law that Parliament, even when enacting statutory duties in apparently absolute terms, is presumed not to have intended that they should apply so as to reward serious crime in the past, it seems to me that Parliament must likewise be presumed not to have intended to promote serious crime in the future. That is consistent with the growing tendency … towards a purposive construction of statutes … Nor would I limit the principle, as [counsel] does, to cases where performance of the statutory duty is required for the purpose of a serious crime which the applicant intends to commit. It must be a matter of degree. The likelihood of future crime and the seriousness of the consequences if crime is committed must both be taken into account. For present purposes, it is sufficient to hold that a statutory duty is not to be enforced if there is a significant risk that to do so would facilitate crime resulting in danger to life. Parliament is presumed not to have intended that, unless it has said so in plain terms.’
‘the correct formulation of the public policy in this context is that the adopted person will not be permitted to exercise his right undersection 51(1) of the Adoption Act 1976 if there is current and justified apprehension of a significant risk that he might in the future use the information obtained to commit a serious crime.’
‘13. … There is no difficulty in understanding that the exercise of an absolute duty would be likely to be subject to the limitation that it should not be exercised so as to allow a person to benefit from his or [her] own crime. R v Secretary of State for the Home Department, Ex p Puttick[1981] QB 767 is authority for that. It is more difficult however to articulate the precise ambit of the limitation where the public policy is said to be that an absolute duty is not to be used to facilitate the commission of a crime, which is exemplified by R v Registrar General, Ex p Smith[1991] 2 QB 393 . Smith’scase, I would suggest, was a case with very special facts, in relation to which the obviousness of the risk, that the use of the information to be supplied might lead to serious harm being inflicted on, in that case, Smith’s natural mother, was such that it was possible to say that Parliament cannot have intended the absolute duty to be employed for that purpose. … 16. … Smith’s case was decided on very extreme facts, where the provision of information amounted to the signing of the adoptive [sic] mother’s death warrant. It is difficult to see that the exercise of the duty of the Registrar General would ever be likely to facilitate the very extreme type of consequences there envisaged. But I do not feel it necessary to decide that point.’
‘My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so.’
‘19. … Normally, the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted. But in truly exceptional cases the court may allow such a claim to proceed.’
‘Such a suspension of F-35 licensing leading to the consequent disruption for partner aircraft, even for a brief period, would have a profound impact on international peace and security. It would undermine US confidence in the UK and NATO at a critical juncture in our collective history and set back relations. Our adversaries would not wait to take advantage of any perceived weakness, having global ramifications.’
‘It is not, therefore, the case that the UK Government can simply issue an instruction to the assembly plants, the regional warehouses, the Prime Contractors or the other Participants to the effect that UK manufactured components are not to be used in Israeli F-35s. Any such change to the programme would require consensus.’
‘65. The first factor is as to the nature of the policy itself. As I said in Good Law Project, there is a spectrum of different kinds of policy. The spectrum ranges from the most formal policies made, after public consultation, under a statute at the one extreme to the most informal internal facing guidance, such as the social media policies in Good Law Project, towards the other extreme. Here the ToR 2017 were neither informal, nor just in the form of guidance. But neither were they published or the subject of public consultation. Moreover, they concerned an area of national importance that was peculiarly within the expertise of law enforcement agencies, RAVEC and the Royal Household itself. The ToR were not public facing, but the subject matter brought with it Government and democratic accountability. 66. The second connected factor is the deference that the court ought to pay to the decision maker in deciding whether it had a good reason to depart from its policy. Even the Claimant accepts that some level of weight should be attached to the judgment of a specialist experienced decision maker, like RAVEC or Sir Richard. I have paid particular heed to the detailed explanations given by Lord Hoffmann in Rehman and by Lord Sumption in Carlile as to why both (a) the separation of powers, and (b) the need for the court to avoid usurping the function of the decision maker, demand that the court treads carefully in a case of this kind. It is critical to understand that the required deference, in relation to whether or not the decision maker had a good reason, is also on a spectrum. At the one end, there will be reasons given for departing from policies on the most sensitive issues of national security where the court can rarely second guess the expertise of Government agencies, and at the other end will be run-of-the mill decisions on routine cases (perhaps on immigration or benefits issues), where deference to the expertise of the decision maker may be less obviously required. That will be particularly so where a cogent explanation is lacking. 67. This second spectrum explains, in my judgment, why the SSHD is wrong to say that the court can only review an authority’s reason for departing from a policy if it is Wednesbury unreasonable. Good reasons to depart from generally applicable policies followed in immigration cases, for example, would obviously be susceptible to review if they were not justifiable. The decisions in Mandalia and Munjaz HL make this clear. As Lord Bingham said in Munjaz HL (see [41] above): “[i]n reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires”. There is, as I say, a spectrum. There is no bright line rule, in my opinion, that good reasons can only be reviewed if they are irrational or unreasonable. 68. In considering whether a decision maker had good reason for departing from a policy, one considers first where on the spectrum of policies the relevant one lies, and where on the spectrum of appropriate deference to the decision maker, the particular type of decision lies. Here, the policy in question is politically highly sensitive. Where questions of national or Royal security are concerned, the court must inevitably be astute to respect the experts in these fields. As the evidence filed for the SSHD repeatedly emphasises, the Government is responsible and democratically accountable for Royal security. These reasons also explain why the court has to respect the expertise of decision makers in this space, and must be careful not to usurp their functions. That does not, of course, mean that the decisions that RAVEC makes are any the less justiciable. But it does mean that the judge was right, as he did, to place weight on the reasoning of the witnesses, and in particular, Sir Richard, Mr Hipgrave and the current Chair.’
‘57. Thirdly, the principal error of law which it is alleged was committed by the Secretary of State in the present case is that he acted irrationally in the process which he adopted in order to make the assessment required by Criterion 2c. … What is important for present purposes, and in particular in addressing ground 1 in the appeal, is that the only legal error which is alleged to have been committed is founded on the public law doctrine of irrationality. This sets a deliberately high threshold. The court is not entitled to interfere with the process adopted by the Secretary of State merely because it may consider that a different process would have been preferable. What must be shown by CAAT is that the process which was adopted by the Secretary of State was one which was not reasonably open to him.’
“The Foreign Secretary has also considered whether to recommend suspension of a broader category of licences than is strictly necessary under the SELC, namely all licences for the IDF regardless of their potential use. Those licences are the ones in scope of Option 2 as listed in Annex C part 2. The Foreign Secretary has not recommended these are suspended.”
“This is not a blanket ban but targets relevant licences that could be used in military operations in Gaza. ”