Dialogues between International and Public Law A conference organised by BIICL and Melbourne Law School, 30 June – 1 July 2016, London Report of Proceedings Dialogues between International and Public Law A conference organised by BIICL and Melbourne Law School, 30 June – 1 July 2016, London Report of Proceedings Contents Page Introduction 3 Summary Report of Proceedings 4 Conference Opening: How the Dialogues Began 4 Keynote Address by Lord Peter Goldsmith QC PC, Debevoise & Plimpton: Dialogues Between International and Public Law 6 Panel 1: The relationship between public international law and public Law – why is it important in practice and in theory? 10 • Chair: Sir Bernard Rix QC, 20 Essex St Chambers 10 • Sir Frank Berman, KCMG QC, BIICL: “International and Public Law: Perspectives from Government and Private Legal Practice” 10 • Professor Cheryl Saunders, Melbourne Law School: “Public law and Public International Law: a Public Law Perspective on Interdependence” 13 • Professor Gerry Simpson, London School of Economics and Melbourne Law School: “International Law as Public Law” 17 Panel 2: Impacts of public international law on public law 22 • Chair: Professor Robert McCorquodale, BIICL 22 • Dr Veronica Fikfak, Homerton College, Cambridge University: “English courts’ ‘internalisation’ of the European Convention on Human Rights? – Between Theory and Practice” 22 • Professor Michael Crommelin, Melbourne Law School: “The Pacific ‘Solution’ to the Refugee Crisis: A Case Study” 26 • Professor Dapo Akande, Oxford University: “Non-justiciability and the Foreign Act of State Doctrine” 30 Panel 3: Public law influences on public international law 34 • Chair: Professor Dan Sarooshi, Oxford University and Essex Court Chambers 34 • Sir Jeffrey Jowell QC, Blackstone Chambers: ”The Internationalisation of the Right to Administrative Justice” 34 • Aimee-Jane Lee, Debevoise & Plimpton: ”The Role of Public Law Notions of Proportionality in Investment Arbitration and in Contemporary Treaty Practice” 37 • Ben Juratowitch, Freshfields Bruckhaus Deringer: “Individual Rights in Disputes Between States” 42 1 Panel 4: Concepts of ”public” in “public” international and “public” law 47 • Chair: Jill Barrett, BIICL 47 • Professor David Feldman QC, Cambridge University: “The Varying Meaning of ‘Public’ in Public Law and Public International Law” 48 • Professor Dr Armin von Bogdandy, Max Planck Institute for Comparative Public Law and International Law, Heidelberg; and University of Frankfurt “From Public International to International Public Law. Translating World Public Opinion into International Public Authority” 50 • Dr Jason Varuhas, Melbourne Law School: “Against the Public–Private Law Divide: Pluralism and Public Law” 53 Panel 5: Complications of Pluralism 59 • Chair: Professor Dawn Oliver, University College London 59 • Alistair McGlone, International Environmental Law Consultant: “Case Study on Compliance by EU Institutions with International Obligations Arising Under the Aarhus Convention” 59 • Dr Jarrod Hepburn, Melbourne Law School: “Parallel Expropriation Norms in International Law and Australian Law” 63 Panel 6: Future directions 68 • Chair: Rt Hon Sir Stanley Burnton QC, One Essex Court Chambers 68 • Tim Eicke QC, Essex Court Chambers: “The Future Potential for Human Rights and Public Law Issues to Feature in Investment Treaty Negotiations and Arbitrations” 68 • Douglas Wilson, Foreign & Commonwealth Office: “Issues on the Horizon: International Law Positions as an Act of Foreign Policy?” 71 • Professor Thomas Poole, London School of Economics: “Future Narratives on State Sovereignty: Where are we Heading?” 72 • Dr Antonios Tzanakopoulos, Oxford University: “What Can we Take Away From These Dialogues?” 74 Annex 1: Speaker biographies 78 Annex 2: Conference programme 87 2 Introduction This two-day conference brought together for the first time leading academic and practising lawyers to pool knowledge and share perspectives on the changing relationship between public international law and domestic public law in different jurisdictions. Organised by the British Institute of International and Comparative Law (BIICL) and the Melbourne Law School (MLS), the aim of the conference was to generate constructive dialogue on how national public law and public international law and practice should, and must, co-exist, combining theory with case studies and the experience of practitioners. The conference was attended by 97 people, including prominent academics in international law and public law fields from a number of countries, experienced practitioners from private practice and government legal practice, and serving and retired members of the senior British and Australian judiciary. It took place at Woburn House Conference Centre, 20–24 Tavistock Square, London, WC1H 9HQ. This report summarises the proceedings.1 1 This report was written by Yvonne Yue Wang and Zoe Hough, Students of Melbourne Law School and Research Interns on the Watts Public International Law Programme, BIICL, under the supervision of Jill Barrett. The authors are grateful to the conference speakers for reviewing the summaries of their remarks in draft. 3 Summary Report of Conference Proceedings Conference opening remarks: how the Dialogues began Jill Barrett opening the conference Jill Barrett, the Arthur Watts Senior Research Fellow in Public International Law at BIICL opened the conference by describing it as the high point of the first five years of collaboration between BIICL and MLS. Developing this relationship has been an important part of the Arthur Watts public international law programme from its inception, so visiting MLS to initiate the programme was one of her first and most enjoyable duties. Ms Barrett recounted her first meeting with Professor Cheryl Saunders in her Melbourne University office in 2012, during which they discovered a common interest in a range of issues at the interface of their two fields of specialisation – international law and public law. For example, they had both been involved in implementing reforms on parliamentary control of treaties. The idea of a joint conference which brings together people from both public law and international law fields was thus conceived, in the realm of fantasy, or so it then seemed. Meanwhile, other elements of the Arthur Watts collaborative programme proceeded, and in total ten students from MLS have worked at BIICL as research interns on the Watts programme. 4 The ninth and tenth are with us today: Zoe Hough and Yvonne Yue Wang, and they are part of the team that has been working hard to prepare for the conference. In addition, members of MLS staff have come to BIICL to conduct research and collaborate on seminars. By way of example, Dr Jason Varuhas is currently in residence pursuing his research on “Mapping Public Law”, as a Visiting Fellow at BIICL. Ms Barrett stated that gradually her fantasy of working with Professor Saunders to convene a conference on the international law/public law interface became a reality, with the help of a number of people at BIICL and MLS, and in particular the sponsors for the conference: Freshfields Bruckhaus Deringer and Debevoise & Plimpton. She also thanked Essex Court Chambers for sponsoring the refreshments and the speakers’ dinner. Ms Barrett remarked that it brought her enormous pleasure to see Professor Saunders and her colleagues present at the conference, including Professor Michael Crommelin and Dr Jarrod Hepburn who came to London specially for this event. She then introduced Sir Bernard Rix, former Lord Justice of Appeal in the Court of Appeal, and now a practising arbitrator at 20 Essex St, as Chair for the keynote address and panel one discussions. Sir Bernard Rix remarked that, on a personal note, he had visited Melbourne around Christmas time last year and found it to be a fine city. He then introduced the keynote speaker, Lord Peter Goldsmith, who was the UK’s Attorney General from 2001–2007, and before that, a most distinguished barrister. Lord Goldsmith is now the Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton. Lord Goldsmith also founded the Bar of England and Wales’s Pro Bono Unit, of which he is now President. 5 Keynote address: Dialogues between International and Public Law Lord Peter Goldsmith QC PC Lord Peter Goldsmith QC PC, Debevoise & Plimpton The “Dialogues between International and Public Law” conference was opened with a keynote address delivered by Lord Peter Goldsmith QC PC, described afterwards by the Chair, Sir Bernard Rix, as an “up to date, topical, comprehensive, informative and challenging address.” Lord Goldsmith opened by remarking that the Brexit referendum result of the previous week had thrown the importance of dialogues between international and public law into sharp relief. This was demonstrated by the fact that one of the key themes of the referendum debate was the nature and extent of the powers exercised by the European Union and the locus, or place, where decisions on matters related to the public interest across a spectrum of issues should be taken. He stated that for many voters, the delegation of certain public powers from the UK to the EU was a determinative factor. Lord Goldsmith went on to say that, although the EU was born out of international law, having been established by international treaties, the Member States expressly agreed in those treaties to pool their sovereign powers in the EU in the belief that the common good was better achieved by States working in concert.