Prosecuting Tony Blair and others

SPECIAL CONTENTIONS

Contention 5:

International customary law, adopted into the municipal common law, can be an exception to the common law rule on stare decisis, entirely consistent with other existing exceptions and reservations to the application of that rule.

Adopted customary international law can be a special exception to the general rule of stare decisis, or the binding precedent of a superior or previous court decision, where, but only where, it can be shown that the previous common (case) law authority, of otherwise binding precedential force, was based on a finding as to the state of customary international law which has since changed, by means of the ordinary course of the development of that body of law. Authority for which proposition is to be found in the decision of the Court of Appeal in Trendtex Trading ltd. v the Central Bank of Nigeria (1). Such specialist exceptions to the general rule are by no means unique, indeed they contribute to the much hailed flexibility of the English common law, and are generally consistent with the “declaratory theory” of the common law.

For example, the common law rule of stare decisis does not apply, so as to bind a subsequent court, where the facts upon which the relevant decision in a superior court or prior precedent was reached (the ratio decidendi), can be reasonably and properly distinguished from those in the matter before the inferior or subsequent court (2). Equally, where, all be it on the very rare occasion, the inferior court can be persuaded that, the decision of the superior court, was made per incuriam, that is through a lack of care, such as in the case of a failure to consider a relevant statutory provision or earlier relevant binding authority (3).

Indeed, one could properly contend that, since the state of relevant customary international law is arguably a question of “quasi-fact”, to be deduced by the court on the “evidence” submitted by the contending parties (4), then where the court is persuaded that the rules of that law have changed over time through natural development, it follows that the earlier authority, otherwise of binding effect, must be properly “distinguishable” (5) and thus cease to be a binding authority. Although not to be strictly proved in evidence, in the same way as is the case with foreign law (4), international customary law is nonetheless to be “proved” as if a fact. As Stephenson L.J. (6) said in Trendtex Trading (1) as follows :

“ But rules of international law, whether they be part of our law or a source of our law, must be in some sense “proved”, and they are not proved in English courts by expert evidence like foreign law: they are “proved” by taking judicial notice of  “ international treaties and conventions, authoritative textbooks, practice and judicial decisions” of other courts in other countries which show that they have “attained the position of general acceptance by civilised nations” : The Cristina [1938] AC 485 (PC) @ p.497 per Lord Macmillan: and those sources come seldom if ever from every civilised nation or agree upon a universal rule; they move from one generally accepted rule towards another.”

Hence where on the evidence, it can be shown that the relevant norms or rules of international customary law have evolved over time, it is submitted that there is nothing exceptional or in the least bit surprising in holding that a previous case authority, no matter of how apparently binding authority, based on the former outdated rule, may be properly and appropriately distinguished (7).

In any event such a ‘flexible’ approach, to the strict operation of the common law rule of stare decisis, is self evidently more consistent and consonant with the “declaratory theory” of the English common law, namely that the common law, as such, never changes, is it merely restated more correctly as it develops over time; since, as Shaw L.J. observed in Trendtex Trading (1) (@ p.579)

“This is hardly consonant with the idea that what was the law of nations persists as a part of English law when it has long ceased to be a part of international law.”

1 Trendtex Trading Corporation ltd. v. the Central Bank of Nigeria [1977] QB 529, @ p.554G per Lord Donaldson MR, & @ p.578G et seq. per Shaw L.J.

2 see for instance England v. Cowley (1873) LR 8 Exch. 126 cf. Oakley v. Lyster [1931] 1 KB 148, although there are doubtless hundreds if not thousands of similar examples.

3 see R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw [1951] 1 KB 711

4 Although note that international law does not have to be formally proved in proceedings before a court or tribunal in this country, in the same way as does the law of a foreign country. See Administration of Justice Act, 1920, s.15.

5 It is submitted that this approach is consistent with and harmonious to the comparable authority of McCormick v. Garnett (1854) 5 DeGM & G 278, where it was held that where a particular point of foreign law [in that case ‘Scotch Law’ (SiC)] had been previously decided in an earlier English case, that decision was, none the less, no authority on the point, which must be proved afresh on the contemporary evidence.

6 @ p.569F. This is a little ironic as Stephenson LJ was the only judge in Trendtex (dissenting from Donaldson MR & Shaw LJ) who reluctantly considered that he was bound by previous English case law authority on the absolute or universal character of foreign sovereign immunity, as against the more contemporary “restrictive doctrine”, i.e. where such immunity no longer applied to international transactions of a manifestly commercial character.

7 In this regard this Author regrets that he cannot concur with the especially bold conclusion of Dr. R.O’Keefe of Cambridge University who contends, on the basis that because Trendtex held that adopted international law is not subject to the common law doctrine of stare decisis, it therefore follows that it is not in fact any part of the common law at all, but rather forms some special species of law with “an independent existence alongside common law within the non-statutory law of England” - see his commendable Article “Customary International Crimes in English Courts” 72 BYIL 293-335 (2000) @ p.307-8.

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