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Wednesday, 28 November 2018 - 5.15pm
Location: 
Lauterpacht Centre for International Law, Finley Library

Lecture summary:  The word ‘justiciable’ is found in Dr Johnson’s dictionary from 1755, and its definition remains more or less unchanged. It is defined as “proper to be examined in a Court of Justice”. Propriety refers to the conceptual, pragmatic, epistemic or legitimate limits of adjudication as a means of social ordering. There is a considerable lack of clarity about what these proper limits should be in a well-ordered polity. Partly this is because questions of propriety emerge in a range of intuitively related, but ultimately distinguishable, situations (eg where there is little connection between the court and a litigant’s actions or property; where the determination of the rights of the parties would imply the determination of the rights of those not connected to the dispute; and where the judgment of a court takes it into areas reserved for other branches of government). And arguments that decision-making authority should shift away from the court in particular instances may conflict with the courts’ duty to enforce fundamental rights.

It has been long held that the existence of an ‘act of state’ can be sufficient for a court to consider a matter non-justiciable. The recent judgments of the Supreme Court in Belhaj and Rahmatullah (2017) – which concern foreign and Crown act of state respectively – thus offer an opportunity to reconsider questions of justiciability. My argument proceeds in three steps. Justiciability relates to a domain, or a “field” (in Fitzmaurice’s words), within which a court can examine and, usually, determine a matter, and beyond which, it cannot. The first step is to return briefly to Fuller’s discussion of polycentricity and unpack several distinctions implied by it which help to identify this proper domain. The second step discusses the judgments Belhaj and Rahmatullah in relation to these distinctions. My argument is that act of state has more to do with jurisdiction and equitable restraint than narrow senses of non-justiciability or deference. The Supreme Court’s judgments are thus more about its, and other courts’, political legitimacy within a well-ordered polity, than the conceptual or pragmatic limits of adjudication. This claim is also well-illustrated by Lord Sumption’s discussion of the oldest recorded case on foreign act of state, Blad v Bamfield (1674). The third step is to articulate the “public policy” exception drawn by the Supreme Court in both Belhaj and Rahmatullah (which is that an act of state should not operate when there is significant evidence of a serious human rights violation) in light of the foregoing discussion. This exception is best understood as one element in the Court’s attempt to balance formal principles.

Professor Patrick Capps is Professor of International Law at University of Bristol Law School.

Lecture: 17:15 hrs - 18:30 hrs

This session is part of the Legal Histories beyond the State work-in-progress seminar series.

As always, the author will speak briefly, and then we'll go into a Q&A/discussion based on some familiarity with the paper - in this case, **portions thereof (only ~11 pages)**.

**If you would like to come, and have not already received the paper from our seminar mailing list, contact Megan Donaldson (md718@cam.ac.uk) for a copy.**

 

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