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Foreign Relations and the Judiciary

Published online by Cambridge University Press:  17 January 2008

Lawrence Collins
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Extract

It is not generally appreciated that Francis Mann was not an international lawyer at all by training. His thesis at Berlin University was in company law. It was only after he had been in England for some time that he began to write about private international law,1 and his interest in public international law was developed as a result of his friendship with Sir Hersch Lauterpacht. It was not until 1943 that he published anything about public international law, and in that year he published a substantial article in two parts on the relationship between national law and international law, in which he built on the previous work on Judicial Aspects of Foreign Relations by Louis Jaffe2 and on acts of state by Sir William Holdsworth.3 Subsequently he came to make this subject his own, at least in England,4 where the subject has never attracted the attention which it has attracted in the United States.5

Type
Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 3 , July 2002 , pp. 485 - 510
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 The Sacrosanctity of the Foreign Act of State (1943) 59 LQR 42 and 155Google Scholar, reprinted in Mann, , Studies in International Law (1973), 420Google Scholar. For an appreciation of his work see Collins, (1993) 64 BYIL 55.Google Scholar

2 1933, as Harvard Studies in Administrative Law, vol 6.Google Scholar

3 Holdsworth, , Act of State (1941) 41 Col. LR 1313CrossRefGoogle Scholar, and see Holdsworth, , History of English Law (ed Goodhart, and Hanbury, , 1964), vol 14, 33–52.Google Scholar

4 Foreign Affairs in English Courts (1986).

5 See especially Henkin, , Foreign Affairs and the Constitution (2nd edn 1996)Google Scholar; Franck, Political Questions/Judicial Answers (1992); Franck and Glennon, Foreign Relations and National Security Law (1987); Glennon, Franck and Cassidy, United States Foreign Relations Law: Documents and Sources, in five volumes (1980–4); and, of course, Restatement of the Law Third, Foreign Relations Law.

6 See JH Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418.Google Scholar

7 Kuwait Airways Corp. v Iraqi Airways Co (Nos 4 and 5) [2001] 3 WLR 1117 (CA)Google Scholar. Judgment from the House of Lords on appeal is awaited.

8 Holtzman v Schlesinger, 414 US 1316 (1973).Google Scholar

9 1976 Clunet 126.

10 Operation Dismantle v The Queen (1985) 18 DLR (4th) 481.Google Scholar

11 Lord Advocate's Reference No 1 of 2000, 2001 SLT 507.Google Scholar

12 Breard v Greene, 523 US 371 (1998)Google Scholar; Federal Republic of Germany v United States, 526 US 111 (1999). Subsequently in the latter case the International Court decided that its orders on provisional measures had binding effect, and that the United States had been in breach of the order by failing to take all measures at its disposal to ensure that the condemned man was not executed pending the final decision of the Court in the case (on the effect of failure by the United States to accord consular facilities to the accused): Germany v United States, judgment of 27 June 2001. See also Higgins, in Liber Amicorum Georges Abi-Saab (2001), 547.

13 Briggs v Baptiste [2000] 2 AC 40.Google Scholar

14 Taylor v Barclay (1828) 2 Sim 213, 221)Google Scholar. In Foster v Globe Venture Syndicate [1901] Ch 811Google Scholar, 814 Farwell J repeated what Shadwell V-C had said, but Lord Sumner, said, ‘This seems to be rather a maxim of policy than a rule of law’: Duff Development Co Ltd v Government of Kelantan [1924] AC 797, 826Google Scholar. It was said of Sir Shadwell, Lancelot that ‘so fond was he of the water that … he once granted an injunction during the long vacation while immersed in that element’ (Foss, Biographica Juridica (1870), 609).Google Scholar

15 See Mann, Foreign Affairs in English Courts (1986), ch 2.

16 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 950.Google Scholar

17 [1977] AC 373, 399.

18 [1978] AC 547, 617.

19 Restatement of the Law Third, Foreign Relations Law, s 112, comment b.

20 Adams v Adams [1971] P 188, 197–8Google Scholar.

21 See British Airways Board v Laker Airways Ltd [1985] AC 50, where the intervention seems to have been rather half-hearted: see especially 69.

22 1982] AC 888.

23 See Rv Bow Street Metropolitan Stipendiary Magistrate, ex Pinochet (No 3) [2000] 1 AC 147. The writer should declare an interest, since he appeared for the Chilean Government in Pinochet (No 3).

24 See Allen v Sir Alfred Me Alpine Ltd [1968] 2 QB 229 (where Salmon LJ said that the role of the amicus was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal argument on his behalf). See also Secretary of State for Justice v Chan Wah [2000] 3 HKLRD 641 (Hong Kong Court of Final Appeal).Google Scholar

25 Parry, , British Digest of International Law, vols 2b, 5–8 (1965–1967).Google Scholar

26 Who included John Collier, John Hopkins, Lady Fox, and the author of this article. Clive Parry was a brilliant, and much underrated, international lawyer.

27 [1964] AC 556.

28 What is now called West Jerusalem, ie the part of Jerusalem under Israeli control even before the 1967 war.

29 FO 371/164322.

30 Ibid. The writer is unable to resist drawing attention to another Foreign Office document in the files, on which comment is unnecessary. A year later an official in the British Consulate in Jerusalem wrote to Mr Crawford (Assistant Under-Secretary of State, and later Sir Stewart Crawford) at the Foreign Office, with copies to the British Embassies in Washington and Cairo, and to the British mission at the UN: ‘For the first time in history (and probably not for the last) there is a Roman Catholic President of the United States. We all know how responsive an American President must be to the Zionist lobby, and how risky it is for a Roman Catholic President to appear at all responsive to the voice of the Vatican’ (FO 371/170543).

31 FO 371/183127. Sir Michael Kerr was instructed (together with Mr Mark Littman QC) as leading counsel by Francis Mann on the appeal to the House of Lords, and chaired the lecture of which this piece is the published version. In his remarks following the lecture, Sir Michael said that this was the first he had heard of Francis Mann's approach to the Foreign Office. It was a great loss when Sir Michael Kerr died on 14 April 2002.

32 Mr Simpson then quotes Francis Mann's note, which was very similar to the ultimate holding by the House of Lords.

33 Gur Corp v Trust Bank of Africa Ltd [1987] QB 599.

34 [2000] HKLRD 252.

35 Blackburn vA-G [1971] 1 WLR 1037 (CA).Google Scholar

36 A-Gfor Canada v A-G for Ontario [1937] AC 326, 347 (PC).Google Scholar

37 Beaumartin v France (1994) 19 EHRR 485.Google Scholar

38 Briggs v Baptiste [2000] 2 AC 40.

39 /Fisher v Minister of Public Safety and Immigration (No 2) [2000] 1 AC 434Google Scholar; Higgs v Minister of National Security [2000] 2 AC 228.Google Scholar

40 Thomas v Baptiste [2000] 2 AC 1Google Scholar; Lewis v Attorney General of Jamaica [2001] 2 AC 50.Google Scholar

41 Briggs v Baptiste [2000] 2 AC 40.Google Scholar

42 Fisher v Minister of Public Safety and Immigration (No. 2) [2000] 1 AC 434, at 445Google Scholar.

43 Higgs v Minister of National Security [2000] 2 AC 228, at 241 ff.Google Scholar

44 Briggs v Baptiste [2000] 2 AC 40,54.Google Scholar

45 [2000] 2 AC at 55.

46 [2001] 2 AC 50.

47 At 84–5.

48 [1991] 1 AC 696.

49 Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114.Google Scholar

50 (1990) 39 ICLQ 513, 524–6.

51 Reprinted as Higgins, Problems and Process, 1994. See especially, 206–13.

52 [1988] 3 All ER 257 (CA).

53 [1995] 1 WLR386.

54 Zsckernig v Miller, 389 US 429, 440 (1968).Google Scholar

55 Re World War II Era Japanese Forced Labor Litigation, 164 F Supp 2d 1160 (ND Cal 2001). See also Frumkin v JA Jones Inc (In Re Nazi Era Cases Against German Defendants Litigation), 129 F Supp 2d 370 (D NJ 2001).

56 369 US 186 (1962).

57 444 US 996 (1979).

58 242 F 3rd 1300 (1 lth Cir 2001).

59 347 F Supp 689 (ED Pa 1972), affd (without opinion, Douglas, Brennan, and Stewart JJ. dissenting) sub. nom. Atlee v Richardson, 411 US 911 (1973).

60 See Mora v McNamara, 387 F 2d 862 (DC Cir 1967), cert denied, 389 US 934 (1967), with Stewart and Douglas JJ dissenting. See also United States v Mitchell, 369 F 2d at 323 (2d Cir 1966) cert, denied, 386 US 972 (1967) Douglas J dissenting. In Massachusetts v Laird, 400 US 886 (1970) Douglas J. dissented on a certiorari petition, and concluded it was wrong to deny a hearing to a state which was attempting to determine whether it was constitutional to require its citizens to fight in a foreign war without a congressional declaration, because, Justice Douglas said, ‘the question of an unconstitutional war is neither academic nor “political”.’

61 361 F Supp 553, revd 484 F 2d 1307 (2d Cir 1973), cert den 416 US 936 (1974).

62 414 us 1304, 1315.

63 A quotation from Justice Black in the Pentagon Papers case: New York Times v United States, 403 US 713, 717 (1971).Google Scholar

64 414 US 1316, 1320.

65 414 US 1321(1973). Justice Douglas's reaction was: ‘A Gallup Poll type of enquiry of widely scattered Justices is, I think, a subversion of the regime under which I thought we lived’: 414 US, at 1324.

66 See Franck and Glennon, Foreign Relations and National Security Law (1987), 762.

67 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374.Google Scholar

68 Operation Dismantle v The Queen (1985) 18 DLR (4th) 481.Google Scholar

69 2001 SLT 507.

70 ICJ Rep. 1996, 66.

71 In R v Ministry of Defence, exparte Smith [1996] QB 517 at 539 Simon Brown LJ said that the legality of the rule prohibiting homosexuals from the armed forces was justiciable: only the rarest cases would today be ruled strictly beyond the purview of the court, only cases involving national security properly so called and where in addition the courts really do lack the expertise or material to form a judgment on the point at issue.

72 444 US 996 (1979).

73 Baker v Carr itself.

74 Davis v Bandemer, 418 US 109 (1986).Google Scholar

75 Gilligan v Morgan, 413 US 1 (1973).Google Scholar

76 218 F 3d 152 (2d Cir 2000).

77 Duke of Brunswick v King of Hanover (1848) 2 HLC 1.Google Scholar

78 Underhill v Hernandez, 168 US 250 (1897).Google Scholar

79 Oetjen v Central Leather Co., 246 US 297 (1918)Google Scholar; Ricaud v American Metal Co, 246 US 304 (1918).Google Scholar

80 Luther v Sagor [1921] 3 KB 532 (CA).Google Scholar

81 168 US 250, 252 (1897).

82 Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964).Google Scholar

83 [1921] 3 KB at 548.

84 Re St Mary the Virgin, Hurley [2001] 1 WLR 931.Google Scholar

85 This subject will be treated in greater detail in a forthcoming piece, where further references will be found.

86 First National City Bank of New York v Banco Nacional de Cuba, 406 US 759 (1972).Google Scholar

87 Alfred Dunhill of London Ltd v Republic of Cuba, 425 US 682 (1976).Google Scholar

88 The Rose Mary [1953] 1 WLR 246.

89 Buttes Gas & Oil Co v Hammer (Nos 2 and 3) [1982] AC 888Google Scholar. The account of the facts that follows is based on Collins, in (1995–6) 6 King's Coll. LJ 20.

90 Buttes Gas & Oil Co v Hammer [1975] QB 557.

91 For parallel US proceedings see Occidental Petroleum Corp. v Buttes Gas and Oil Co., 331 F Supp 92, affd 461 F 2d 1261, cert den 409 US 950 (1972); Occidental ofUmm al Qaywayn, Inc. v A Certain Cargo of Petroleum, 396 F Supp 461, affd 577 F 2d 1196, cert den 441 US 928 (1979).

92 Occidental of Umm al Qaywayn v A Certain Cargo of Petroleum, 577 F 2d 1196 (5th Cir 1978).

93 Above, text at n 76.

94 [2001] 3 WLR 1117, 1207.

95 Foreign Affairs and the US Constitution, 2nd edn (1996), 148.Google Scholar

96 British Airways Board v Laker Airways Ltd [1985] AC 58.

97 Gur Corp v Trust Bank of Africa Ltd. [1987] QB 599 (CA).