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.
Judges:
Simon Brown LJ, Maurice Kay LJ, Richards J
Citations:
[2003] LRC 335, [2002] EWHC 2777 (Admin), 126 ILR 727
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
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 Also – Campaign for Nuclear Disarmament, Regina (on the Application of) v Secretary of State for Defence Admn 5-Dec-2002
. .
Cited by:
See Also – The 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 . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
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 . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Constitutional, International
Updated: 28 May 2022; Ref: scu.241520