Non-Justiciability and its Implications
1. The International Court of Justice (ICJ) has stated unequivocally that some issues are non-justiciable. Private and public international law interact when foreign governments get involved in domestic courts. While courts are more willing to defer basic ideas of sovereignty and territoriality in order to preserve private rights, they continue at times cautious when adjudicating disputes involving foreign powers. Non-justiciability is a legal notion that protects both foreign countries and the executive of the forum by stating that courts will not hear cases involving transactions between foreign countries. The idea that courts would serve the interests of litigants is commonplace in today’s globalised society, where international trade and business are commonplace. Individuals, global organisations, and governments all place a high value on knowing that they may turn to the courts if a conflict arises. It’s fairly uncommon for these conflicts to raise concerns of importance to governments, even if they’re not directly relevant to the parties involved. Parties acting on a worldwide scale would reasonably anticipate that their interests and, if necessitated, the vindication of their private rights, would be given precedence over these concerns in the courts. If a doctrine is in conflict with these expectations, it would need to be supported by a compelling rationale .
To put it another way, the House of Lords established the notion of non-justiciability in Buttes Gas and Oil Co v Hammer No 3. On any of these two grounds, a court may avoid adjudicating in disputes involving foreign governments because there are ‘no judicial or manageable norms’ by which a court may decide those problems; or because adjudicating such issues would give ’embarrassment’ to the executive of the forum. The theory is rooted in private international law, although it straddles the line between private and public law. While courts used to be inclined to maintain conceptions of state sovereignty and territoriality, they are now becoming progressively unwilling to do so, particularly where the enforcement of private rights is at issue. Non-justiciability is said to harm private rights and impair the separation of powers by protecting both the forum executive and the interests of foreign nations. As a result of this. Finally, if courts continue to support the non-justiciability doctrine, the fear of future materialisation might hinder confidence and clarity in the anticipation of access to courts for individuals involved with cross-border transactions. In order to avoid interfering with the president’s prerogative, judges may be doing precisely that: undue deference to other nations, driven by concerns not to violate their sovereignty nor impede the executive’s foreign policy, undermines the independence of the forums, its very thing that the executive is sworn to safeguard.
As a result of this investigation, this article has advocated for an approach to the doctrine that avoids dichotomizing factors, such as rule of law as well as separation of powers, or private plaintiffs’ interests and those of the general public, into “competing” and “mutually exclusive” conceptions. All of these concerns are intertwined. When private litigants are denied access to adjudication in Australian cases, they are being warned of the potential harm that this doctrine can impose on them and the harm that it has already done. Moreover, the examples show that the courts’ essential role to maintain the separation of powers and protect the rule of law may be in jeopardy as a result.
The Role of Judicial Review in Administrative Law
2. In many countries, it is now also recognised that a reviewing court may intervene where an administrative decision-maker makes a legal error by erroneously reading the law. Anisminic v. Foreign Compensation Commission was a turning point in the legal landscape. Although there was a privative clause, the House of Lords concluded that a misunderstanding of an Order in Council warranted court involvement. Democracy was of the utmost importance. Administrators, in the words of Lord Pearce, must “restrict themselves to the powers expressly delegated to them by Parliament on a correct reading of the relevant Acts.” An administrative decision-legal maker’s authority is “simply enforced” when a court intervenes to keep him or her within the limits set by law. As a rule-of-law matter, judicial review should guarantee that a statute’s “very efficacy” is protected. “The premise of the rule of law is violated when a decision maker acts without legal authorization.”
House of Lords v. Foreign Compensation Commission (1968) was a landmark and widely debated judgement by the House of Lords that sought to distinguish among an error of law and an error on the face of the record. A mistake in law committed by a public body inevitably nullifies its judgement in this case, which was established under the theory of collateral fact A difference may be established among misconstruing an enabling act for the sort of case designed to deal with which is a jurisdictional mistake and misconstruing the statutory description of the circumstance, which would be an error within jurisdiction,” says the theory. Scholars and jurists alike have pointed out the difficulties of making such a distinction in practice. Supreme Court Justice Lord Browne-Wilkinson saw the Anisminic Case as establishing a new standard for determining whether a ‘jurisdictional mistake of law is on the face of record’ as opposed to other types of ‘legal errors.’ In contrast to the objective restriction attempted to be imposed on powers, this approach is pragmatic. For the first time since Anisminic, this case holds that errors of substantial fact may also be grounds for judicial review when the primary decision maker makes a mistake of fact.
Finally, it appears to me that the dispute between the two judges in Privacy International boils down to a disagreement over the constitutional significance to be assigned (on the one hand) to legislative sovereignty and thus to the statutory text, while (on the other hand) to the rule of law and so to the maintenance of judicial review in the light of the ouster provision. Leggatt J makes it very apparent that, in his view, the relative weight of the rule of law might be so great as to threaten to overwhelm the legislation in relevant situations. In other words, it’s still unclear whether the rule of law may override a legislation in the sense that it permits judicial disobedience to it. It is almost as desirable as it is unavoidable that this situation persists.
3. Human rights law theories have been developed by the European Court of Human Rights [hereafter, ECtHR] in accordance with the objectives and purposes of the Convention. Europe’s Human Rights Convention stems from a combination of both a global and regional perspective. Since the Convention was intended to be the first steps towards the collective enforcement of some rights specified in the Universal Declaration of Human Rights (1948), the linkages to that document are freely acknowledged in the Preamble. Human rights and basic liberties protection and advancement were tools the Convention used to accomplish the Council of Europe’s goal of greater unification among its member states. As a result, the Court’s approach is frequently cautious and tinged with a strong focus on self-restraint. Even within the Court’s judiciary, there are differing perspectives on the bounds of interpretation as well as judicial activism, as well as the appropriateness of using foreign sources. Despite the fact that the Court has stayed abreast of worldwide trends and has concentrated on matters that have long been on the international human rights agenda, the results obtained from those trends have always been subject to specific restrictions. The case of Roche v United Kingdom ECHR 2005 establishes the aspect of procedural and substantive aspects. When procedural protections have been found to be lacking, it has been simple to expand the scope of treaty provisions to incorporate additional globally agreed features. Conversely, if the national authorities have behaved cautiously and the decision has damaged substantive protection of human rights, they have been conservative in their view. There is a clear infringement of the right to privacy when the United Kingdom military is not able to maintain an effective and accessible method for gaining access to medical records. After a former soldier began experiencing health issues, he wanted access to documents to see if the chemical weapons testing, he had undertaken during his time in the army had an effect on his present health. The ex-soldier sought the Court after the Ministry of Defense repeatedly denied and provided only partial information. Court found that, despite its rejection of the claim that the former soldier’s right to freedom of expression had been violated, the failure to disclose the information had a significant impact upon the former soldier’s capacity to comprehend his health conditions and violated his right to privacy and family life.
Articles/Websites/Books
Croquet N, ‘The International Criminal Court And The Treatment Of Defence Rights: A Mirror Of The European Court Of Human Rights’ Jurisprudence?’ (2011) 11 Human Rights Law Review
Daly P, ‘Jurisdictional Error And Administrative Law Values’ (Paul Daly, 2022)
<https://www.administrativelawmatters.com/blog/2017/10/27/jurisdictional-error-and-administrative-law-values/> accessed 25 April 2022
Elliott M, ‘Distinguishing Anisminic? Ouster Clauses, Parliamentary Sovereignty And The Privacy International Case’ (Public Law for Everyone, 2022)
<https://publiclawforeveryone.com/2017/02/10/distinguishing-anisminic-ouster-clauses-parliamentary-sovereignty-and-the-privacy-international-case/> accessed 25 April 2022
Gerads J, and Glas L, ‘Access To Justice In The European Convention On Human Rights System’ (Sage Journals, 2022)
<https://journals.sagepub.com/doi/full/10.1177/0924051917693988> accessed 25 April 2022
Nicholson M, ‘The Political Unconscious Of The English Foreign Act Of State And Non-Justiciability Doctrine(S)’ (2015) 64 International and Comparative Law Quarterly
Reuters, ‘Buttes Gas & Oil Co V Hammer (No.3) [1981] Q.B. 223 (20 June 1980)’ (Practical Law, 2022)
<https://uk.practicallaw.thomsonreuters.com/D-017-2401?originationContext=document&vr=3.0&rs=PLUK1.0&transitionType=PLDocumentLink&contextData=(sc.Default)> accessed 25 April 2022
Wendor A, ‘Are There Any Limits To Justiciability?’ (Mckinneylaw.iu.edu, 2022) <https://mckinneylaw.iu.edu/iiclr/pdf/vol7p311.pdf> accessed 25 April 2022
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