Campaign for Nuclear Disarmament (CND) v Prime Minister and others: Admn 17 Dec 2002

CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action in the event of non-compliance by Iraq with its terms. CND said that the purpose of its application was to ensure that the government did not in the future embark upon unlawful military action against Iraq through an erroneous understanding of the true legal position. CND invited the court to declare that the government would be acting in breach of international law were it to take military action against Iraq without a further resolution.
Held: The court refused the declaration. A court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on 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.
Simon Brown LJ said that the court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on 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. He gave a number of examples. Just as in Lyons the House of Lords had refused to take account of the state’s duty in international law since it did not properly sound in domestic law, so in CND the court refused to express a view upon the meaning and effect of UN resolution 1441. Simon Brown LJ: ‘What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing, as in cases like Kebilene and Launder, for our courts to consider the application of an international treaty by reference to the facts of an individual case. (That, indeed, would have been the position in Lyons itself had the courts been prepared to undertake the exercise.) It is quite another thing to pronounce generally upon a treaty’s true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authoritative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?’ There was no foothold in domestic law for any ruling to be given on international law, in which he included a ruling on the meaning and effect of resolution 1441.
Maurice Kay J noted that there were what Lord Phillips had described in Abbasi at as forbidden areas and concluded that the subject matter of CND’s application fell within them. The issue was non-justiciability. Consideration by the government of whether military action would be lawful under international law by reason of resolution 1441 as part of the exercise of the prerogative powers of the executive and non-justiciable.
Richards J rejected the application on discretionary grounds but also said that the claim was not justiciable because it would take the court into areas of foreign affairs and defence which were the exclusive responsibility of the executive government, a forbidden area. He rejected a submission that it was possible to isolate a purely judicial or legal issue as ‘a clinical point of law’. He set out detailed reasons for agreeing that the application must fail on the ground that it asked the national court to declare the meaning and effect of an instrument of international law, viz resolution 1441.
Simon Brown LJ, Maurice Kay LJ, Richards J
[2002] EWHC 2777 (Admin), [2003] LRC 335, 126 ILR 727
Bailii
England and Wales
Citing:
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
See AlsoCampaign for Nuclear Disarmament, Regina (on the Application of) v Secretary of State for Defence Admn 5-Dec-2002
. .

Cited by:
See AlsoThe Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
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Held: The . .
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SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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These lists may be incomplete.
Updated: 26 December 2020; Ref: scu.241520