The ins and outs of public international law

Public international law (PIL) was until relatively recently a subject that most lawyers left behind at university at best.

But with the House of Lords decision in Pinochet (no.

3) in 1999 and the current passage of the International Criminal Court Bill through Parliament, there has been a significant change in attitude within the legal profession to this area of law.

Indeed, there has been a great increase in case law in this field over the past ten years.

PIL is the legal regime which governs its subjects, namely states, the entities of states (including ministries, state corporations), diplomats, and the more recent creations of states, like international organisations, such as the International Monetary Fund and World Bank.

The latter are entities created by treaties (legal agreements between states) and are often given legal capacity within some or all of their member states.

Broadly speaking, PIL comprises treaty law, United Nations Security Council binding resolutions, certain judicial decisions and the body of state practice known as customary international law (CIL).

A recent statement of principle as to how this countrys courts approach PIL, which is contained in the leading text Oppenheim and was approved by Lord Lloyd in the first decision of the House of Lords in the Pinochet case.

R v Bow Street Metropolitan stipendiary magistrate, ex parte Pinochet Ugarte [2000] 1 AC 61 neatly summarises the position: The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from rules of customary international law will be recognised and given effect by English courts without the need for any specific act adopting those rules into English law.

However, it is necessary for the rule of CIL to be clear and certain to enable the domestic court to give effect to it.

A recent example of the court requiring certainty of existence for the rule of CIL is in Hutchinson v Newbury Magistrates Court (9 October 2000) Divisional Court.In that case, a woman convicted of the offence of criminal damage to the perimeter fence of a nuclear weapons installation sought to argue that she had a defence for her actions, by virtue of a rule of CIL which prohibited nuclear weapons.She referred to the advisory opinion of the International Court of Justice on the question of the legality of nuclear weapons (1996) to support her argument.

The court dismissed her contentions, not least because the International Court of Justice had itself in its advisory opinion stated that the position was far from certain in this regard.

In the case of The Queen on the Application of Altin Vallaj v The Special Adjudicator (21 December 2000) Dyson J, the issue concerned a challenge to refusal of an asylum claim made by a Kosovo Albanian, and dismissal of an appeal against the refusal by a special adjudicator.However, the court was required to interpret and apply a treaty (the Refugee Convention of 1951) and also recognised the binding legal effect of UN Security Council resolutions issued under chapter VII of the UN Charter.

The judge held that the convention was not to be interpreted literally, and, as a matter of fact and law, the United Nations Interim Administration (UNMIK) and NATOs Kosovo force (KFOR) provided the protection required under the convention.

Furthermore, because the Federal Republic of Yugoslavia had consented to the presence and activity of KFOR and UNMIK in Kosovo, the principle of agency could be invoked in this case to attribute their actions to the state authorities.

The case is the subject of an appeal to the Court of Appeal, which is to be heard this month.

Case law from our courts over the past ten years manifests an increasing willingness and enthusiasm on the parts of the courts to adjudicate upon matters which engage issues of PIL.

While there is evidence of some reservation in this regard, notably the speeches of Lord Slynn and Lord Goff in the Pinochet (no.1) case, subject to provision of some safeguards to ensure that the court is always properly informed of the relevant and applicable principles of PIL, there is no reason why the courts should not engage in this exercise.As the former president of the International Court of Justice, Judge Jennings, pointed out in 1996 with reference to the writings of Professor Sir Hersch Lauterpacht in 1929: International law is the only branch of law containing identical rules administered as such by the courts of all nations.Recent case law provides every indication that our courts will be required to administer these rules much more frequently than in the past.

Khawar Qureshi is a barrister at Serle Court, Lincolns Inn.

He is also Treasury Counsel and visiting lecturer in international law at Kings College, London