International Environmental Law in the Courts of the United Kingdom

• DOI: http://doi.org/10.1111/1467-9388.00214
• Published date: 01 November 1999
• Author: Ruth Khalastchi
• Date: 01 November 1999

Volume 8 Issue 3 1999 International Environmental Law in UK courts

International Environmental

Law in the Courts of the

United Kingdom

International Environmental

Law in the Courts of the

United Kingdom

Ruth Khalastchi

Introduction

Judge Rosalyn Higgins has spoken of a legal culture that

exists ‘in which it is possible to become a practising law-

yer without having studied international law, and indeed

to become a judge knowing no international law’.

1

In Hig-

gins’ opinion this ‘disposes both counsel and judge to

treat international law as some exotic branch of the law,

to be avoided if at all possible, and to be looked upon

as if it is unreal, of no practical application in the real

world’.

2

Judge Higgins continues to note that this ‘is a

not unfair description of some courts in the United King-

dom’.

3

This observation might explain, at least partly,

why international environmental law appears so far to

have had only a minimal impact on the courts in the

United Kingdom. International environmental rules and

principles have only occasionally made their way into

British cases. When they have done so, the general

approach by the judges has been one of caution and an

apparent reluctance to develop the domestic law on

environmental protection in line with international

developments. The United Kingdom adopts a principally

dualist approach to international law,

4

refusing internal

effect to a treaty without it being incorporated into dom-

estic law. Had the UK’s approach been monist – where

treaties are automatically part of the law of the land –

one might have expected a different attitude to inter-

national environmental law by British judges.

The dualist approach might explain, to some extent at

least, the limited inf‌luence of international law on the

domestic domain. Recent case law suggests, however, a

slowly changing attitude. Most recently, the Pinochet

case

5

marked a signif‌icant watershed for the relationship

between international and national law in the UK. It

brought international law squarely within the main-

stream of the English legal system. The House of Lords in

deciding that Senator Pinochet could not claim immunity

from extradition proceedings in the UK in respect of cer-

tain acts alleged to have been committed by him whilst

he was head of state, relied, in particular, on the incor-

poration of the 1984 Torture Convention.

6

The Law

Lords held, inter alia, that once the Convention entered

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301

into force for the UK (in 1988) acts of torture committed

outside of the UK became a crime under UK law for

which there could be no sovereign immunity. In doing

so, the Lords had to consider complex issues of inter-

national law and its interplay with domestic legislation.

Even before the Pinochet case, particularly in the f‌ield of

human rights law, some judges looked to international

treaties not merely as a source of interpretative guid-

ance, but rather as a means to develop domestic law.

For example, in a 1997 House of Lords case, Hunter v.

Canary Wharf,

7

Lord Cooke, in his dissenting opinion,

referred to specif‌ic provisions in international human

rights treaties, and stated that ‘international standards

%may be taken into account in shaping the common

law’.

8

The case involved two separate actions in private

nuisance by local residents for damages resulting from

interference with television signals and for the gener-

ation of dust from the construction of a road. In

determining who had standing to sue in private nuis-

ance, the majority of the House of Lords were of the opi-

nion that only the person with the relevant proprietary

interest can bring an action in private nuisance. This

would not, therefore, include other individuals who

might have suffered discomfort in addition to (or per-

haps instead of) the person with the right to sue, such

as other members of the family. In Lord Cooke’s opinion,

however, such individuals might have a suff‌iciently close

connection with the land and have the requisite standing

to sue. In noting that international standards should be

taken into account in shaping the common law, Lord

Cooke explicitly referred to Article 16 of the UN Conven-

tion on the Rights of the Child,

9

which declares that no

child shall be subjected to unlawful interference with his

or her home and that the child has the right to the pro-

tection of the law against such interference. According

to Lord Cooke, Article 16 which adopts some of the lang-

uage of Article 12 of the Universal Declaration of Human

Rights

10

and Article 8 of the European Human Rights

Convention,

11

is ‘aimed, in part, at protecting the home

and construed to give protection against nuisances’ and

that ‘the protection is regarded as going beyond pos-

session or property rights’.

12