Shaping the world order
International law has an increasingly important role at a national level, one in which domestic courts have a part to play
On 19 and 20 May 2011 the Third International Law in Domestic Courts (ILDC) Colloquium took place at the University of Glasgow, with the Amsterdam Centre for International Law as co-organiser. The colloquium involved presentations and panels from the standpoint of domestic courts on their role as “agents of legal development”. Although international law is playing an increasingly important role at a national level, the event attracted comparatively few Scots practitioners or academics compared with those from other parts of Europe. This article aims to put its subject into a Scottish context.
As contended by the first speaker, Antonios Tzanakopoulos from the University of Glasgow, although international law imposes rules on the state, in practice those rules set limits primarily on the actions of the executive. In the event of any breach, an individual’s first complaint is before a domestic court. A domestic court at any level might therefore be required to deal with aspects of international law.
Sources of international law
At this point it is worth pausing to consider what a court would be required to consider; i.e. where international law may be found. Set out at article 38(1) of the Statute of the International Court of Justice, the sources of international law are:
(a) treaties, as defined in article 2(1)(a) of the Vienna Convention on the Law of Treaties;
(b) customary international law, that is, state practice and the belief that such conduct is required by virtue of a rule of law (opinio juris). Peremptory norms of customary international law are known as jus cogens and refer to a state’s obligation to the international community at large;
(c) the general principles of law recognised by civilised nations; and
(d) judicial decisions and teachings, as subsidiary means.
Of course, as Tzanakopoulos observed, the way a domestic court takes international law into account varies according to the type of source and also the nature of the domestic legal order.
Treaties in the domestic context
Maintaining relationships with other states is the role of the United Kingdom as a whole, although there is a role for Scotland in observing and implementing international obligations, and assisting UK ministers in international relations.
In the UK, treaty making is part of the royal prerogative, exercised on the advice of the Secretary of State for Foreign and Commonwealth Affairs. By virtue of the historical convention known as the “Ponsonby Rule”, now set out in s 20 of the Constitutional Reform and Governance Act 2010, a treaty signed by the UK must be laid before both Houses of Parliament and cannot be ratified until at least 21 sitting days later, without either House having resolved that it should not be ratified. (The Scottish Parliament has no role, even if the subject matter of the treaty is devolved.) Once a treaty has entered into force it is published in the Treaty Series of Command Papers, most of which may be found on the Foreign and Commonwealth Office website: www.fco.gov.uk/en/publications-and-documents/.
National law increasingly incorporates international treaty obligations by recreating them at a domestic level. This may be direct, as with the European Communities Act 1972, or indirect, as with the Human Rights Act 1998. Regardless of approach, when a treaty is incorporated into domestic law it is treated within the jurisdiction as part of the body of national law (albeit subject to international law rules of interpretation). While unincorporated treaties are not part of domestic law in the same way, there is a presumption in favour of national law conforming with international law, i.e. also with unincorporated treaties. This applies throughout a state, although the approach taken to give effect to treaty obligations may differ.
Customary international law
Focusing on the definition in the ICJ Statute, it seems clear that treaties are easier to identify than customary international law, since both elements of the latter, state practice and the belief that such conduct is required, might be difficult to ascertain. Adding to the confusion, it has also been argued that general principles of law recognised by civilised nations might form part of customary international law, adding to the difficulty of identifying it.
Such evidential issues aside, in Scotland it is clear that if a rule of customary international law is proved, then that rule is also a rule of Scots law. As a matter of law rather than fact, a jury does not require to hear evidence on the content of customary international law; instead, it is a matter for the judge. Both propositions can be found in a case concerning citizen action in respect of nuclear weapons: Lord Advocate’s Reference No 1 of 2000 2001 JC 143.
Some time has passed since this decision, which appears to be one of the few Scottish cases dealing with customary international law. A more recent case provides an example of UK (and European) judicial consideration of international law, this time in relation to treaties. The case, R (Al-Jedda) v Secretary of State for Defence  1 AC 332, involved the reconciliation of provisions in the Charter of the United Nations with the European Convention on Human Rights.
Al-Jedda had been detained in Iraq by British forces acting as part of the multinational force pursuant to a UN Security Council resolution. He contended this detention deprived him of his rights to liberty and security under article 5(1) of the ECHR. The House of Lords held that the UK was subject to an “obligation” within the meaning of the Charter to give effect to the resolution. As article 103 of the Charter sets out that Charter obligations prevail in the event of a clash with other treaty obligations, the UK was held to be entitled, where necessary for imperative security reasons, to exercise the power to detain authorised by the resolutions.
Departing on this point from the House of Lords, the Grand Chamber in Strasbourg held last month (application no 27021/08) that there must be a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights. The Strasbourg court stated it will choose an interpretation most in line with the ECHR, except where clear and explicit language is used to make clear there is a conflict. It found there was no obligation in the resolution at issue and therefore none which could prevail over ECHR rights.
Consideration of international law at the national judicial level involves an exercise of balance, and the approach taken by one national court might contribute towards that of another. In the academic world it remains debatable whether such national – and supranational – consideration will cause international law to become more uniform or more fragmented as a result.
Scotland and “international obligations”
It seems there is comparatively little discussion on international law as it applies in Scotland. Perhaps this stems from Scotland’s primary role as implementer of obligations undertaken by the UK, but the provisions of international law set important limits on the actions of both the executive and the legislature, and so must be taken into account in any judicial consideration of those acts.
The Scotland Act 1998 created a system which restricts the executive and the legislature to acting within their devolved competence. It also provided Scottish ministers with exclusive competence to implement international obligations in devolved areas. The current Scotland Bill proposes this competence be shared with UK ministers, a proposal criticised by the Scotland Bill Committee of the last Scottish Parliament – see para 198 of its report. However, the Secretary of State retains the power to prohibit the Scottish Parliament’s Presiding Officer from submitting a bill for Royal Assent if there are reasonable grounds to believe that it contains provisions that “would be incompatible with any international obligations”: 1998 Act, s 35. Section 58 contains a similar power in respect of both ministerial functions and subordinate legislation.
During the passage of the 1998 Scotland Bill Donald Dewar, then Secretary of State for Scotland, referred to these sections as “fail-safe mechanisms” to guard against a situation said to be difficult to envisage, whereby either the executive or legislature in Scotland failed to observe an international obligation entered into by the UK as a whole. While s 126(10) excludes Community law and ECHR rights from the scope of the term “international obligations”, it would seem clearly to cover treaty obligations, and arguably customary international law.
Just as European law and the ECHR have provided a Scottish framework, so too does international law, albeit in a more undeveloped way. While colloquium participants raised questions about the role national courts ought to play in their consideration of international law (whether the law should simply be declared or whether courts should seek to nudge it along), the position in Scotland is rather less developed. Regardless of how domestic courts go about this task, the fact that it increasingly befalls them elsewhere means it might also happen here. As national law will increasingly take international law into account, so too will the international legal community increasingly take account of national decisions.This affords new possibilities for academic research, and also offers keen practitioners further arguments to put before national courts.
Nicola Shiels is a solicitor with the Scottish Government Legal Directorate. The views are her own and not the Scottish Government’s