It was held that: ‘the Crown’s power to conclude treaties with other sovereign states was an exercise of the royal prerogative . . . [but this] did not extend to altering domestic law or rights of individuals without the intervention of Parliament and a treaty was not part of English law unless and until it had been incorporated into it by legislation’. Lord Oliver went on to emphasize that individuals do not derive any rights under, nor are they deprived of obligations by, untransformed treaties. As a result, the claims against the ITC were non-­justiciable and were therefore rejected.

An individual had been detained by British forces operating in Iraq on grounds of security. His detention remained indefinite and he was not charged with an offence. Although the conditions of the detention violated Art 5(1) ECHR, the British government claimed that it was nonetheless justified in detaining him in this manner because SC Resolution 1546 granted to all nations a broad authorization to detain suspected terrorists. The question was whether obligations stemming from the SC (on the basis of the UN Charter) superseded the UK’s human rights legislation.

Lord Bingham noted that actions taken pursuant to SC resolutions override the UK’s human rights obligations, irrespective of whether these are derived from domestic legislation or other international treaties (ie the ECHR). This conclusion was the result of Art 103 UN Charter. Nonetheless, the UK was under an obligation to reconcile as best as possible its two competing obligations. In the case at hand, this entailed ensuring that the detainee’s rights under Art 5 ECHR were not infringed ‘to any greater extent than is inherent in such detention’.

This concerned an investment dispute. The parties had entered into a contract to regulate private leases but, at the same time, a bilateral investment treaty (BIT) existed between Egypt and the investor’s country of nationality which extended several investment guarantees to all investors holding the nationality of both countries. The governing law of the contract was clearly Egyptian law, whereas the applicable law under the BIT was international law. At some point, the investor claimed that Egypt had breached the private leases contract and had additionally failed to afford an investment guarantee. Which law applied to these disputes—Egyptian or international law?

The tribunal held that the applicable law of each dispute was to be determined according to the source of the obligation claimed. The dispute as to the private leases arose from the parties’ contract and therefore the parties’ choice of law (ie Egyptian law) was applicable. The dispute as to the investment guarantee arose from the BIT, an international treaty, where the applicable law was designated as being international law.