The American Federation of Musicians of the United States and Canada & Ors, R (on the application of) v The Secretary of State for Science and Technology

Domestic courts cannot interpret or enforce unincorporated treaties merely because legislation or executive policy was intended to comply with them. A stated governmental intention to meet international obligations does not create a domestic foothold or convert treaty obligations into domestic rights. The exception applies where it is necessary to determine domestic law, such as when an incorporated statute must be interpreted or where a domestic policy expressly gives rise to the relevant obligation. Subordinate legislation is not unlawful for restricting rights created by primary legislation where the primary legislation expressly contemplated such restrictions. A consultation is unlawful for non-disclosure only where the omission makes the process materially unfair; a general possibility of treaty reservations need not be disclosed before it has become a formulated policy proposal.

The claimants, representing United States performers, sought judicial review of the Copyright and Performances (Application to Other Countries) (Amendment) (No. 2) Order 2024 (SI 2024/1124). The Order restricted the circumstances in which US performers could receive equitable remuneration for the broadcast or public communication of commercially published sound recordings.

They argued that the Order was inconsistent with the unincorporated Rome Convention, WPPT and CPTPP; was ultra vires the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024; and followed an unfair consultation. The central issues were whether the treaty-based challenges were justiciable, whether the Order unlawfully removed rights conferred by primary legislation, and whether permission should be granted to add the consultation ground.

1. Justiciability. Grounds 1 to 4 were dismissed as non-justiciable. Under the dualist constitution, unincorporated treaties are not part of domestic law, do not confer enforceable rights on individuals, and cannot be interpreted or applied by domestic courts. This remains so even where the treaty language appears clear or the executive has stated that legislation is intended to comply with international obligations.
2. The limited domestic-foothold cases did not assist the claimants. Launder and Kebilene were confined by Corner House to their particular human-rights context. The ECAT cases concerned a domestic policy or statutory guidance, not direct enforcement of a treaty. Heathrow was distinguishable because the government itself relied on the unincorporated treaty as a defence to a domestic claim. No such circumstance arose here.
3. The fact that the treaties contained detailed rules, or that other policy objectives were also pursued, did not make them intrinsically justiciable. Their interpretation engaged international-law principles and treaty dispute mechanisms, and the claimants identified no domestic policy supplying the necessary foothold. The existence of separate Francovich litigation did not alter the analysis.
4. Ultra vires. The Order did not repeal or negate rights conferred by primary legislation. Section 5(3) of the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024 inserted section 206(4)(za) into the Copyright, Designs and Patents Act 1988, expressly permitting restrictions on rights arising through Conditions C and D. The Act’s purpose also extended to making other provision connected with the CPTPP.
5. Consultation. Permission to add the proposed consultation ground was refused. The possibility of revising the Rome Convention reservation had appeared only in an early internal exchange and had not become a developed policy proposal. Consultees could understand the general possibility of reservations, and no particular proposal required consultation.
6. The claim for judicial review was dismissed.

First-instance judicial review claim. No earlier decision in the same proceedings was stated.