Al-Haq, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Domestic courts generally cannot determine whether a foreign state has breached international law where doing so requires resolving complex facts and matters of high foreign policy. Justiciability depends on the subject matter and suitability of the issues, not merely on the source of the power under review.

A domestic claim against the Government does not create a sufficient foothold where the relief would compel a change in foreign policy. Exceptional cases involving a plain and acknowledged breach, a statutory domestic right, or the administration of justice do not justify intervention where the alleged breach is disputed and no authoritative determination exists. Standing must be assessed in the legal and factual context of the claim, and cannot arise where no arguable domestic right is identified.

Al-Haq, a Palestinian human rights organisation, sought permission to bring judicial review proceedings against the Secretary of State concerning the United Kingdom’s response to Israel’s military operation in Gaza. It alleged that the United Kingdom was obliged under customary international law to recognise and respond to Israel’s breaches of international obligations.

The claimant sought declarations and mandatory relief affecting government policy, including diplomatic, military, financial and trading measures. Collins J directed that jurisdiction, justiciability and standing be determined as if permission had been granted on those limited issues. The central questions were whether the domestic court could adjudicate Israel’s alleged breaches and direct the Government’s response, and whether the claimant had standing.

1. Outcome. The Divisional Court refused permission. The claim was not arguably justiciable and the claimant was not granted standing.
2. Justiciability. The controlling consideration is the subject matter of the power, not whether its source is prerogative. The proposed claim was, in substance, for condemnation of Israel and a direction as to the foreign policy which the United Kingdom should adopt. That entered a forbidden area involving foreign affairs and high policy.
3. The court distinguished exceptional authorities. In Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), the breach was plain and acknowledged. In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, the breach was clear and the court recognised only a limited domestic foothold concerning consideration of a request for diplomatic assistance. Those circumstances were absent here. The Wall Opinion concerned different issues and supplied no authoritative determination of the alleged events in Gaza.
4. The proposed adjudication would require the court to determine Israel’s obligations, assess disputed events outside the jurisdiction, consider possible justifications, define the United Kingdom’s alleged customary international law obligations and review the conduct of foreign policy. There were no sufficiently judicial or manageable standards. Institutional competence, comity and the constitutional allocation of foreign affairs to the executive reinforced that conclusion.
5. The court did not determine generally whether customary international law forms part of domestic law. It held that the alleged international obligations could not provide the domestic foothold needed to compel the Government to adopt particular foreign-policy measures. The Government, rather than the court, was responsible for deciding what action was appropriate in the international context.
6. Standing had to be assessed in the legal and factual context of the whole claim. Since there was no arguable right for the claimant to assert and the claim was not justiciable, the claimant should not be permitted to bring it.

The judgment itself states that Collins J referred the limited issues of jurisdiction, justiciability and standing to the Divisional Court. No further appellate history is stated.