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Published online by Cambridge University Press: 25 July 2022
In the 36 years since Francis Mann published Foreign Affairs in English Courts, the engagement of the United Kingdom courts with issues of international law has greatly increased. This article addresses the reasons underlying this trend and identifies four key developments: first, the nature of international law has evolved to embrace individuals as subjects; second, the Human Rights Act 1998 has had a profound influence, often requiring domestic courts to rule on matters of international law in order to give effect to the European Convention on Human Rights; third, in recent decades there has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law; and fourth, these developments have been accompanied by a shift in attitudes to the relationship between customary international law and the common law.
This article is based on the 43rd FA Mann Lecture organised by Herbert Smith Freehills under the auspices of the British Institute of International and Comparative Law and delivered by Lord Lloyd-Jones in the Old Hall, Lincoln's Inn on 18 November 2021. The author is most grateful to his judicial assistants, Rebecca Fry, Isabella Buono and Crawford Jamieson, for their assistance in the preparation of this lecture, and to Professor Eirik Bjorge and Professor Philippa Webb for their helpful comments on an earlier draft.
1 Mann, FA, Foreign Affairs in English Courts (OUP 1986)CrossRefGoogle Scholar. For a more recent account of the subject, see C McLachlan, Foreign Relations Law (CUP 2014).
2 Higgins, R, ‘International Law’ in Blom-Cooper, L, Dickson, B and Drewry, G (eds), The Judicial House of Lords (1876–2009) (OUP 2009)Google Scholar.
3 ‘Public International Law in the Supreme Court of the United Kingdom: A selection of cases from the Court's first ten years’ (London, 2019) <https://www.supremecourt.uk/docs/public-international-law-in-the-supreme-court-of-the-united-kingdom.pdf>.
4 Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62; [2019] AC 777; 180 ILR 575; NML Capital Ltd v Republic of Argentina [2011] UKSC 31; [2011] 2 AC 495; SerVaas Inc v Rafidain Bank [2012] UKSC 40; [2013] 1 AC 595; 160 ILR 668; Belhaj v Straw, Rahmatullah v Ministry of Defence and another (No 2) [2017] UKSC 3; [2017] AC 964; 178 ILR 576; The United States of America v Nolan [2015] UKSC 63; [2016] AC 463; 180 ILR 477.
5 Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another [2015] UKSC 69; [2016] AC 1355
6 Al-Sirri v Secretary of State for the Home Department, DD (Afghanistan) v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745; 159 ILR 616; R (Tag Eldin Ramadan Bashir and others) v Secretary of State for the Home Department [2018] UKSC 45; [2019] AC 484.
7 Belhaj v Straw (n 4).
8 Reyes v Al-Malki and another [2017] UKSC 61; [2019] AC 735.
9 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3; [2018] 1 WLR 973. It is noteworthy that FA Mann's view of the meaning of ‘inviolability’ of diplomatic correspondence was carefully considered in this case.
10 HM Treasury v Ahmed and others [2010] UKSC 2; [2010] 2 AC 534; 149 ILR 641.
11 Al-Waheed v Ministry of Defence [2017] UKSC 2; [2017] AC 821; 178 ILR 414.
12 Micula and others v Romania [2020] UKSC 5; [2020] 1WLR 1033.
13 R v Reeves Taylor [2019] UKSC 51; [2021] AC 349.
14 General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22; [2021] 3 WLR 231.
15 ‘Maduro Board’ of the Central Bank of Venezuela v ‘Guaidó Board’ of the Central Bank of Venezuela [2021] UKSC 57; [2022] 2 WLR 167.
16 The Law Debenture Trust Corporation plc v Ukraine 2018/0192 (judgment outstanding, on appeal from: [2018] EWCA Civ 2026; [2019] QB 1121).
17 Basfar v Wong [2022] UKSC 20.
18 As Bentham explained when he coined the term ‘international law’, he considered this branch of jurisprudence to concern ‘the mutual transactions between sovereigns’ (J Bentham, An Introduction to the Principles of Morals and Legislation (JH Burns and HLA Hart eds, Athlone Press 1970) 296.
19 See the observations of the Court of Appeal in Belhaj v Straw [2014] EWCA Civ 1394; [2015] 2 WLR 1105, at para 115.
20 Belhaj v Straw (n 4) para 251.
21 Jennings, RY, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 ICLQ 1, 4CrossRefGoogle Scholar. See also Fatima, S, Using International Law in Domestic Courts (Hart Publishing 2005) 3–26Google Scholar, which surveys the areas of practice where questions of international law are most likely to arise.
22 Al-Waheed (n 11).
23 [2016] EWCA Civ 811; [2017] QB 1015.
24 Adopted by the UN General Assembly on 20 December 2006. The Convention entered into force for the States party to the Convention on 23 December 2010. The United Kingdom is not currently a party. The Convention has influenced the development of Article 5 ECHR by the Strasbourg court in cases of enforced disappearance. Al-Saadoon, CA, ibid, at paras 149, 152–158, 175.
25 [2008] UKHL 20; [2008] 1 AC 1356.
26 ibid para 60.
27 Benkharbouche (n 4).
28 Vienna Convention on the Law of Treaties, art 31(3)(c). See also Al-Waheed (n 11), per Lord Sumption at para 46.
29 Benkharbouche (n 4) para 35, referring to R (Corner House Research) v Director of Serious Fraud Office (BAE Systems plc interested party) [2008] UKHL 60; [2009] AC 756 per Lord Brown at para 68; P Sales and J Clement, ‘International Law in Domestic Courts: The Developing Framework’ (2008) 124 LQR 388, 405–7.
30 R (ICO Satellite Ltd) v Office of Communications [2010] EWHC 2010 (Admin).
31 The difference in view between courts in the United Kingdom and the Strasbourg court as to whether Article 6 has any application at all where international law requires the grant of immunity remains unresolved. See Holland v Lampen-Wolfe [2000] 1 WLR 1573, at 1588; Matthews v Ministry of Defence [2003] 1 AC 1163; Jones v Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270; cf Al-Adsani v United Kingdom (2002) 34 EHRR 11 at para 48; McElhinney v Ireland (2001) 34 EHRR 13 and Fogarty v United Kingdom (2002) 34 EHRR 12; Jones v United Kingdom (2014) 59 EHRR 1, at paras 162, 164. In Benkharbouche (n 4) paras 30, 75, the Supreme Court was unwilling to address the controversy as in that case there was no binding rule of international law denying jurisdiction.
32 Benkharbouche (n 4) para 63.
33 The Charter of Fundamental Rights of the European Union includes many provisions which are parallel to the provisions of the ECHR. However, it does not include a provision corresponding to Article 1 ECHR. Article 51(1) provides that ‘[t]he provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to Member States only when they are implementing Union law’. Article 52(3) provides that ‘[i]n so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’.
34 (1989) 11 EHRR 439.
35 Banković v Belgium and others (2007) 44 EHRR SE5 at para 68; Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1. cf Tomic v United Kingdom, 17837/03, 14 October 2003; Babar Ahmad v United Kingdom (2010) 51 EHRR SE6 at paras 100–116. The applicable standard in the case of Article 6 is that of a flagrant denial of justice. In Othman the Strasbourg Court explained that what is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
36 Soering v United Kingdom (n 34) para 91. See also Al-Saadoon v United Kingdom (2010) 51 EHRR 9 at paras 123–124.
37 Banković (n 35) para 68.
38 ibid para 86.
39 ibid para 80.
40 ibid para 75.
41 ibid paras 64–65.
42 [2010] UKSC 29; [2011] 1 AC 1, at paras 259–264.
43 See also Al-Saadoon, CA (n 23) para 27.
44 X v Federal Republic of Germany, No 1611/62, Commission decision of 25 September 1965; X v United Kingdom, No 7547/76, Commission decision of 15 December 1977; WM v Denmark, No 17932/90, Commission decision of 14 October 1993.
45 Drozd and Janousek v France and Spain (1992) 14 EHRR 745 (at para 91). See the explanation of Drodz in Banković (n 35) para 67. Ocalan v Turkey (2005) 41 EHRR 45 may also be explained on this basis. See R (Smith) v Oxfordshire Assistant Deputy Coroner (n 42), per Lord Mance at para 193.
46 Loizidou (Preliminary Objections) (1995) 20 EHRR 99; Loizidou v Turkey (Merits) (1997) 23 EHRR 513; Güzelyurtlu v Cyprus and Turkey (2019) 69 EHRR 12. See also Ilascu v Moldova and Russia (2005) 40 EHRR 46; Jaloud v Netherlands (2015) 60 EHRR 29.
47 Al-Saadoon and Mufdhi v United Kingdom (Admissibility) (2009) 49 EHRR SE11; Medvedyev v France (2010) 51 EHRR 39, at para 67; Issa v Turkey (2005) 41 EHRR 27; Ocalan v Turkey (n 45).
48 Issa v Turkey, ibid, at para 71.
49 (2011) 53 EHRR 18.
50 ibid para 137.
51 ibid para 149.
52 The system of human rights protection established by the Canadian Charter of Rights and Freedoms is not applied extra-territorially in such an extensive manner, see Amnesty International Canada v Canada (Chief of Defence Staff) [2009] 4 FCR 149.
53 [2015] EWHC 715 (Admin); [2015] 3 WLR 503, at paras 106, 294.
54 ibid, per Leggatt J at paras 95–98. See also Al-Waheed (n 11), per Lord Sumption at para 48; Keyu (n 5).
55 Al-Saadoon (n 23) paras 69–70.
56 Al-Waheed (n 11), per Lord Sumption at para 48.
57 [2013] UKSC 41; [2014] AC 52. In doing so it departed from the decision in R (Smith) v Oxfordshire Assistant Deputy Coroner (n 42).
58 In Al-Skeini [2007] UKHL 26; [2008] 1 AC 153 the House of Lords had held that section 6 of the Human Rights Act 1998 should be interpreted as applying not only when a public authority acts within the United Kingdom but also when it acts within its jurisdiction for the purposes of Article 1 ECHR outside the territory of the United Kingdom. However, in Al-Waheed (n 11), Lord Sumption suggested (at para 48) that it is ultimately for courts in the United Kingdom to decide whether they are bound by the view of the Strasbourg court in Al-Skeini v United Kingdom (2011) 53 EHRR 18 on the scope of application of the ECHR if they are satisfied that it goes beyond what Parliament has enacted in the Human Rights Act 1998.
59 (2021) 73 EHRR 6.
60 ibid paras 114, 115.
61 ibid para 124, referring to Medvedyev v France (n 47) para 64. See also MN v Belgium (3599/18), decision of 5 March 2020 at para 112.
62 ibid paras 131, 132.
63 ibid para 137.
64 ibid para 144.
65 ibid paras 174–175. The majority went on to hold at para 220 that there had been violations of Articles 2, 3 and 8 of, and of Article 1 of the First Protocol to the Convention in the period from 12 August 2008.
66 ibid paras 331–332. It did so on the basis that there were special features of this case which established a jurisdictional link, namely that the Russian Federation had an obligation to investigate the events in issue, under both international humanitarian law and domestic law, that the Russian Federation had established effective control over the area in question shortly after the end of the active phase of the hostilities, and that, as the potential suspects were located in the Russian Federation or in territories under its control, Georgia was prevented from carrying out its own investigation. The Court went on to hold, by a majority, that, in respect of events both during and after the active phase of the hostilities, the procedural obligation imposed on the Russian Federation under Article 2 of the Convention had been breached (at para 337). See also Güzelyurtlu v Cyprus and Turkey (n 46); Hanan v Germany, App No 4871/16, 16 February 2021.
67 Hanan v Germany, ibid, at paras 134–145. See L Tattersall, ‘The Oligation to Investigate Civilian Deaths in Extraterritorial Armed Conflicts’ (2021) 137 LQR 559.
68 ibid, partly dissenting judgment of Judges Grozev, Ranzoni and Eicke at para 30.
69 [1996] ICJ Rep 66, at para 25.
70 [2004] ICJ Rep 136, at para 106.
71 Democratic Republic of Congo v Uganda [2005] ICJ Rep 168.
72 A more nuanced approach to the three possible situations can be found in D Bethlehem, ‘The Relationship between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2013) 2 CJICL 180.
73 (2011) 30 BHRC 637; (2011) 53 EHRR 23.
74 (2014) 38 BHRC 358.
75 At paras 104–105.
76 Arts 43, 78.
77 Hassan (n 74) para 106. In Georgia v Russian Federation (No 2) (n 59), the majority of the Strasbourg Court considered the relationship between the Convention and international humanitarian law as a preliminary issue. They set out paras 100–104 and 107 of Hassan (paras 93–94) and, on that basis, decided that they should ‘ascertain each time whether there is a conflict between the provisions of the Convention and the rules of international humanitarian law’ (para 95). In respect of the complaint concerning the detained Georgian civilians, the majority considered there to be no conflict between Article 3 of the Convention and the relevant provisions of international humanitarian law (para 235), but recognised, in light of paras 97–98 of Hassan, that there might be a conflict in respect of Article 5 (para 236). Ultimately, however, the majority concluded that the present case was distinguishable from Hassan, as the purported justification for detention (namely to ensure the security of civilians) was not permitted under either the Convention or international humanitarian law. Accordingly, ‘the reasons set out … in Hassan [were] not applicable’ (paras 236–237). The majority went on to apply the Court's own case law on Articles 3 and 5 (paras 240–256). In Hanan v Germany (n 66), the Strasbourg Court decided (at paras 198–199) that, as there was ‘no substantive normative conflict’ between the applicable rules of international humanitarian law and those under the Convention, it could confine itself to examining the facts of the case on the basis of its case law on Article 2, without having to address whether the requirements for taking into account international humanitarian law, in the absence of a formal derogation under Article 15, were met. The Court went on to hold that the investigation was compatible with Article 2.
78 Al-Waheed (n 11).
79 Mohammed concerned Afghanistan and Al-Waheed concerned the (initial) occupation phase in Iraq. Both were, therefore concerned with non-international armed conflicts.
80 Al-Waheed (n 11), per Lord Sumption at paras 59–61.
81 Lord Reed and Lord Kerr dissenting.
82 Al-Waheed (n 11) para 14.
83 ibid para 16. Lord Mance said (at para 148) that his position on this issue was closer to Lord Sumption's than Lord Reed's.
84 Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368.
85 At 431. He continued: ‘If the appellants’ pleadings and particulars had not been struck out, the appellants would have proceeded to demand discovery before trial and to lead evidence at the trial, harassing to the plaintiffs and embarrassing to the court and designed to support the allegations and insinuations of oppression and bad faith on the part of the Spanish authorities which appear in the amended defences and particulars. These allegations are irrelevant to the trade marks action and the banks’ action and are inadmissible as a matter of law and comity and were rightly disposed of at the first opportunity.’ (at 436).
86 Mann (n 1) 146–7.
87 [1983] 2 Lloyd's Rep 171, 190.
88 Mann (n 1) 149–50.
89 [1971] AC 250.
90 ibid 278H-279A. See also Lord Morris at pp 279C-D and 280F.
91 Belhaj v Straw (CA) (n 19) para 115.
92 Statute law has also contributed to this change. Section 14(3) of the Private International Law (Miscellaneous Provisions) Act 1995 expressly permits the application of principles of public policy in the choice of law in tort and delict, thereby permitting the disapplication of an objectionable foreign law. (In Kuwait Airways Corporation v Iraqi Airways Co (Nos. 4 and 5) [2002] UKHL 19; [2002] 2 AC 883, Lord Steyn observed (at para 114) that, had this provision been engaged, that case would have been a classic case for its application. See also Belhaj (n 4), per Lord Sumption at para 257).
In section 134 of the Criminal Justice Act 1988 Parliament has made official torture a crime contrary to the law of England and Wales wherever in the world it is committed and sees no objection to the investigation and determination of such issues in criminal proceedings in this jurisdiction. (The section was enacted to enable the United Kingdom to become a party to the United Nations Convention against Torture. R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 1) [2000] 1 AC 61 and R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147. (See R v Zardad, Case No T2203 7676, Treacy J, 7 April 2004; R v Lama [2014] EWCA Crim 1729; [2017] QB 1171, R v Reeves Taylor [2019] UKSC 51; [2021] AC 349).
93 See, generally, MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2010] 2 AC 110; DD v Secretary of State for the Home Department; AS v Secretary of State for the Home Department (Appeals Nos SC/42/2005 and SC/50/2005) (unreported) 27 April 2007 (SIAC); R v Home Secretary, Ex p Adan [2001] 2 AC 477.
94 See, for example, Al-Koronky v Time Life Entertainment Group Ltd [2006] EWCA Civ 1123; [2006] CP Rep 736; Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804; Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458.
95 A v Home Secretary (No 2) [2005] UKHL 71; [2006] 2 AC 221.
96 See eg R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 ; R v Mullen [2000] QB 520.
97 ibid 67.
98 [2008] EWCA Civ 289; [2008] HRLR 28.
99 ibid para 36.
100 SIAC SC/42 & 50/2005, at paras 33, 50.
101 ibid paras 347–349.
102 ibid paras 153–160, 351–352.
103 ibid para 354.
104 ibid para 371.
105 AS and DD (Libya) (n 98) para 79.
106 Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1; Belhaj v Straw (n 4), per Lord Neuberger at paras 121, 125–126.
107 Duke of Brunswick v King of Hanover, ibid; Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532; Princess Paley Olga v Weisz [1929] 1 KB 718; ‘Maduro Board’ of the Central Bank of Venezuela v ‘Guaidó Board’ of the Central Bank of Venezuela (n 15) paras 118–135.
108 Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, 937; Belhaj (n 4), per Lord Neuberger at paras 123, 128–130. cf Al Maktoum v Al Hussein [2021] EWCA Civ 129. The author had the immense good fortune to be instructed, as a very junior member of the Bar, by Francis Mann and Lawrence Collins, and led by Mark Littman QC and Eli Lauterpacht QC in Buttes Gas and Oil Co v Hammer (No 3) before the House of Lords. The decision in Buttes Gas was, of course, one to which Francis Mann was never reconciled—as Jonathan Mance demonstrated in his FA Mann lecture in 2017 (Lord Mance, ‘Justiciability’ (2018) 67 ICLQ 739).
109 Oppenheimer v Cattermole [1976] AC 249; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) (n 92); Belhaj, ibid, per Lord Neuberger at para 153. See also D McGoldrick, ‘The Boundaries of Justiciability’ (2010) 59 ICLQ 981, 992–6.
110 Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd; Yukos Capital SARL v OJSC Rosneft Oil Co (No 2), both (n 94), per Rix LJ at paras 73–91; ‘Maduro Board' of the Central Bank of Venezuela v ‘Guaidó Board’ of the Central Bank of Venezuela (n 15) paras 153–170, 175–177.
111 Buttes Gas (n 108), per Lord Wilberforce at 926G–927A; WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International 493 US 400 (1990); Belhaj (n 4), per Lord Sumption at paras 240–242.
112 Belhaj (n 4), per Lord Sumption at para 241.
113 Yukos (n 94), per Rix LJ at para 65. See also R (Noor Khan) v Secretary of State for Foreign Affairs [2014] EWCA Civ 24; [2014] 1 WLR 872 per Lord Dyson MR at para 37.
114 Oetjen v Central Leather Co 246 US 297, 303–4 (1918). See also Luther v Sagor (n 107), per Scrutton LJ at 558–9.
115 Mann (n 1) 151–2.
116 Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Co Ltd [1939] 2 KB 544, 552.
117 Buttes Gas (n 108) 938 A–C. In Belhaj Lord Mance observed that in Buttes Gas no indication of any embarrassment had been drawn to the court's attention by HM Government and that the inference, if anything, was that it might have been a relevant factor, had it been shown: (n 4), per Lord Mance at para 104.
118 cf R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs (n 113).
119 Belhaj v Straw (n 4), per Lord Neuberger at paras 149, 212. See also Lord Sumption at para 212.
120 ibid para 149. He referred to In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 [1978] AC 547, 616–17 and 639–40, and Adams v Adams [1971] P 188, 198.
121 Belhaj v Straw (n 4), per Lord Mance at para 105.
122 [1977] QB 529.
123 [1977] QB 529, 554; [1977] 1 All ER 881, at pp 889–90.
124 W Blackstone, Commentaries on the Laws of England (1765) Fourth Book, Fifth Chapter.
125 H Lauterpacht, ‘Is international law a part of the law of England?’ (1939) 25 Transactions of the Grotius Society 51, refers to Triquet v Bath (1764) 3 Burr 1478; The Duke of Brunswick v The King of Hanover (1844) 6 Beav 1; De Haber v The Queen of Portugal (1851) 17 QB 170, at p 208; Magdalena Steam Navigation Co v Martin (1859) 2 E & E 94.
126 Jennings, R and (eds), Oppenheim's International Law (9th edn, Longmans 1992) 56–7Google Scholar. See also Lauterpacht ibid.
127 The precise relationship of customary international law and the common law was left open by Lord Wilberforce in I Congreso del Partido [1983] 1 AC 244 at pp 261–2 and by Lord Hoffmann in R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136, at para 59.
128 See R O'Keefe, ‘The Doctrine of Incorporation Revisited’ (2008) 79 BYIL 7, 58; Chung Chi Cheung v The King [1939] AC 160 per Lord Atkin at pp 167–8.
129 Crawford, J, Brownlie's Principles of Public International Law (8th edn, OUP 2012) 68CrossRefGoogle Scholar. See also R v Jones (Margaret) (n 127), per Lord Bingham at para 1; Belhaj (n 4), per Lord Sumption at para 252.
130 See, for example, R. (Marchiori) v Environment Agency [2002] EWCA Civ 3; [2002] Eu LR 225 per Laws LJ; R v Jones (Margaret) (n 127). See also Sales and Clement (n 29); O'Keefe (n 128); D Lloyd Jones, ‘Is International Law a Part of the Law of England?’ (2011) 16 Judicial Review 192.
131 See, generally, Bjorge, E and Smith, E, ‘United Kingdom’ in Palombino, FM (ed), Duelling for Supremacy: International Law vs. National Fundamental Principles (CUP 2019) 357, 377Google Scholar.
132 Keyu (n 5), per Lord Mance at para 149. See also R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin) (DC).
133 ibid para 150. See also R (Freedom and Justice Party), ibid paras 166–179.
134 Keyu (n 5), per Lord Mance at para 150.
135 R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs (Metropolitan Police Commissioner, interested party) (Amnesty International intervening) [2018] EWCA Civ 1719; [2019] QB 1075.
136 ibid, per Arden LJ at paras 124–136.
137 International Law Commission, ‘Conclusions on Identification of Customary International Law’ (August 2018) Conclusion 5, Conduct of the State as State Practice: ‘State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions.’
138 Al-Waheed (n 11) paras 147–151.
139 Jones v Saudi Arabia (n 31), per Lord Bingham at para 22, per Lord Hoffmann at para 63; Benkharbouche (n 4) per Lord Sumption at para 35.
140 [2020] UKSC 10; [2020] 2 WLR 857.
141 ibid, see Lord Kerr at paras 148–151; Lord Carnwath at para 190(iii).
142 Jennings (n 21) 3–4.
143 ibid xiii.