INTERNATIONAL LAW, Sixth edition

international law and municipal law 187
was adopted consequential upon a fundamental breach of international
law (such as the Iraqi invasion of Kuwait in 1990 and seizure of its assets),
enforcement or recognition of such law by the courts would be ‘manifestly
contrary to the public policy of English law’. Further, it was emphasised
that international law recognised that a national court may decline to give
effect to legislative and other acts of foreign states which are in violation
of international law. 309 Lord Steyn noted that the extension of the public
policy exception to recognition of foreign laws from human rights violations
to ‘flagrant breaches of international law’ was correct. Reference
was made to the UN Charter, binding Security Council resolutions and
international opinion in general. 310 Lord Hope emphasised that ‘very narrow
limits must be placed on any exception to the act of state rule’, but
there was no need for restraint on grounds of public policy ‘where it is
plain beyond dispute that a clearly established norm of international law
has been violated’. 311 He concluded that ‘a legislative act by a foreign state
which is in flagrant breach of clearly established rules of international law
ought not to be recognised by the courts of this country as forming part
of the lex situs of that state’. 312
The courts may also not feel constrained in expressing their views
as to foreign sovereign activities where a breach of international law,
particularly human rights, is involved 313 and may not feel constrained
from investigating, in a dispute involving private rights, the legal validity
of an act done by a citizen purporting to act on behalf of the sovereign or
sovereign state. 314 It is clear that the courts will regard as non-justiciable
policy decisions by the government concerning relationships with friendly
foreign states, on the basis that foreign policy is pre-eminently an area
for the government and not the courts. 315 In particular, a number of cases
have laid down the proposition that decisions taken by the executive in
its dealings with foreign states regarding the protection of British citizens
abroad are non-justiciable. 316
309 [2002] UKHL 19, para. 29. See also Oppenheim’s International Law, pp. 371 ff.
310 [2002] UKHL 19, para. 114.
311 Ibid., paras. 138–40.
312 Ibid., para. 148. See also Lord Scott, ibid., para. 192.
313 See e.g. Abbasi v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA
Civ. 1598, paras. 57 and 66 (per Lord Phillips MR); 126 ILR, pp. 710 and 713.
314 See e.g. Dubai Bank v. Galadari, The Times, 14 July 1990.
315 See Ex parte Everett [1989] 1 QB 811; 84 ILR, p. 713; Ex parte Ferhut Butt 116 ILR, pp.
607, 620–1, and Foday Saybana Sankoh 119 ILR, pp. 389, 396. See further above, p. 180.
316 See e.g. Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374,
411 (per Lord Diplock); Ex parte Pirbhai 107 ILR, pp. 462, 479; Ex parte Ferhut Butt 116
ILR, pp. 607, 615 and 622 and R (Suresh and Manickavasagam) v. Secretary of State for the
Home Department [2001] EWHC Admin 1028, para. 19; 123 ILR, p. 598.