The edges of international law

A study of foreign relations law written by a Victoria University law professor is making a big impact overseas.

Professor Campbell McLachlan’s book Foreign Relations Law shot to prominence in January when it was the only work of a living author cited by the majority of the United Kingdom (UK) Supreme Court in its Brexit judgment.

Campbell, who is also a Queen’s Counsel, has presented on the ideas from the book in seminars around the world and in 2017 is running a special topic course on foreign relations law at Victoria’s Law School.

The week before the Brexit judgment, the UK Supreme Court had also relied on his work in an extraordinary case of alleged MI6 complicity in rendition and torture.

“Belhaj was a prominent Libyan dissident during the Gaddafi regime,” says Campbell. “He alleges that in 2004, with the complicity and assistance of MI6, he was detained by the CIA at Kuala Lumpur airport, taken to a black site in Thailand, then against his will flown back to Libya, where he was imprisoned and tortured, and not released until Gaddafi was ousted.

“He claims that this was done knowingly by the British Government, as part of their thaw with Gaddafi during that period. Based on that allegation, Belhaj sued Jack Straw (then UK Foreign Secretary) and MI6.

“Not so much in New Zealand, which may reflect our relative isolation in the world, but in the UK, Canada and Australia, there’s been an explosion of case law in this area,” he says. “And one of the reasons for that is 9/11.”

Since then, and the subsequent ‘war on terror’, courts in the UK, Canada and Australia have been drawn into a ‘search for substitute justice’ by those who can’t get a hearing in the US. “The Belhaj case is an example of this. Mr Belhaj claims he just wants to achieve a level of accountability.

“The response of the British Government was to plead the foreign act of state doctrine: that a UK court couldn’t even hear the case because it centred on an allegation of complicity between British officials and the officials of a foreign state. To decide the case, the court would need to sit in judgment on another government’s acts, which, they said, contravenes that doctrine.”

Belhaj v Straw went all the way to the Supreme Court. Its January 2017 decision, which repeatedly cited Campbell’s book, ruled that Belhaj’s claims can be sent to trial in an English court.

“In short, the Government’s argument was rejected. I argued in the book that the foreign act of state doctrine shouldn’t immunise the officials of a home state from their own courts. It’s a basic principle of the rule of law that the executive is accountable in its own courts for alleged grave breaches of human rights.

“This decision has a significance well beyond its extraordinary facts, for the law in New Zealand as much as in the UK. The Government cannot expect a free pass in the courts for its acts abroad, simply because it has acted in collusion with foreign states.”