Professor Lindell explores the role of judicial review in the conduct of foreign affairs. He canvasses five kinds of cases in the UK, Ireland, and the USA which have concerned or arisen out of the recent military actions in Iraq and Afghanistan:

Situation A: The legality according to the rules of public international law of the Coalition invasion of Iraq in 2003, whether raised directly in civil pro­ceedings or indirectly in criminal pro­ceedings where demonstrators against the war are prosecuted for damaging military installations.

Situation B: The legality according to the rules of public international law of a neutral country (Ireland) allowing US aircraft carrying military personnel and munitions to Iraq to fly over and land in the neutral country.

Situation C: The constitutional legality of the US invading Iraq in 2003, allegedly without obtaining the Congressional approval required in the US Constitution; and the legality of the Irish Government participating in the same war to the limited extent already mentioned, allegedly without obtaining the approval of the Dail (lower House of the Irish Parliament) required under the Irish Constitution.

Situation D: The legal responsibility of the UK Government for failing to seek the release of one of its citizens from arbitrary detention in Guantanamo Bay, Cuba, after US authorities captured the citizen in Afghanistan.

Situation E: The legal validity of two decrees. The first was issued by the Iraqi Govern­ment and purported to expropriate civilian aircraft which belonged to a public authority of Kuwait. The second decree is assumed to have been issued by the Coalition Allies with the intent to expropriate oil in Iraq following the invasion of Iraq by the Coalition Allies in 2003. It is also assumed that the validity of both decrees is raised in civil proceedings which are commenced in the UK courts where the ownership of the aircraft and oil is in dispute between private parties.

Part of the Centre for International and Public Law's Law and Policy Papers series.

Table of Contents

Introduction

CHAPTER 1: Preliminary observations
Justiciability
Relationship between public international law and domestic law

CHAPTER 2: The situations addressed
Situation A: International legality of the war
Situation B: Neutrality
Situation C: Legislative approval of hostilities
Situation D: Failure to make diplomatic representations for citizens detained by foreign governments
Situation E: Expropriation decrees

CHAPTER 3: Significance for Australia
Situation A: International legality of the war
Situation B: Neutrality
Situation C: Legislative approval of hostilities
Situation D: Failure to make diplomatic representations for citizens detained by foreign governments
Situation E: Expropriation decrees

CHAPTER 4: General observations about the judicial review of foreign affairs
Justiciability, the Buttes case principle and the Act of State doctrine
Relationship between domestic and international law
Administrative law

CHAPTER 5: Concluding observations on the judicial review of foreign affairs