The Ties that Bind: How Domestic Politics Influence Ties with Extraterritorial Courts--A Study of the JCPC.

• Author: Young, Harold
• Position: United Kingdom Judicial Committee of the Privy Council - Report

During the last half century, extraterritorial courts and the number of acceding states have markedly increased. As Robert Koehane notes, better theories of domestic politics are needed to bridge the gap between external and internal environments in a systematic way. (1) Therefore, it is important to better understand the relationships between the extraterritorial court and the state. This paper posits that the governments of those states will seek a change or disengage from the extraterritorial court if they perceive a disconnection between themselves and the extraterritorial court. The perception of such a disconnection is influenced by changes in the political environment that make the state more sensitive to decisions that are unfavorable to it. To test this theory, this paper examines arguably the first and best example of an extraterritorial court, namely the Judicial Committee of the Privy Council (JCPC). An examination JCPC decisions where the state is a party to the appeal in the context of different political environments demonstrate that unfavorable decisions in themselves do not move the state to abandon the court. Conversely, favorable decisions do not perpetuate access to the JCPC. These findings suggest that the decisions of the court are not sufficient cause for the state to abandon the court. This work is a first step in broadening our understanding of the linkage of states and extraterritorial judicial institutions in the context of domestic political environments.

State sovereignty is linked to autonomy and can be defined as possessing specific capacities or powers that can be utilized without the consent or approval of another. (2) Extraterritorial courts are institutions that states accede to and delegate decision making authority. (3) This effectively outsources a judicial function traditionally considered a part of the domestic domain. Relying on an extraterritorial court as an appellate court for an independent state is fundamentally incompatible with the modern notion of sovereignty. (4) Recognition of the need for more research into the connection between domestic and international politics goes back at least fifty years, with the call for development of a linkage theory that is supported by a research agenda on national-international flows of influence. The absence of such a theory was due both to the lack of communication between those who specialize in national politics, those who specialize in international relations and the radical revision of the standard conception of politics that this theoretical approach would entail. (5)

Exemplary of the need to better understand the link between the domestic political environment and relationships with extraterritorial courts follows a series of decisions by the European Court of Human Rights (ECtHR) denying the United Kingdom (U.K.) the right to deport suspected terrorists. (6) The 2015 political environment--with the Conservative Party in power--was quite different from that of 1988, under the Labour Party when Parliament ratified the Human Rights Convention in 1998 and acceded to the ECtHR. Furthermore, the unfavorable decisions of the ECtHR came at a time when the governing Conservative Party had publicly expressed its policy objective of limiting the jurisdiction of the ECtHR in the U.K. However, discord in the governing coalition has led to no action being taken. In June 2015, Prime Minister Cameron from the governing Conservative Party was cited by Watt for refusing to back away from the pledge to withdraw the U.K. from the ECtHR. (7) Prime Minister Cameron claims that the court's decisions impinge on British sovereignty. (8) Furthermore, he refuses to rule out abandoning the European Convention on Human Rights unless the U.K. can win the right to veto decisions of the ECtHR. When questioned directly by fellow Conservative Party Member of Parliament Andrew Mitchell however, Prime Minister Cameron stated that there are no immediate plans to abandon the ECtHR. (9)

Lord Mance, a judge on the U.K. Supreme Court of Judicature, defends the contributions of the ECtHR to British law while other judges decry the ECtHR as undermining democracy in the U.K. (10) Incidentally Lord Mance was also a Law Lord of the JCPC. It is evident, therefore, that while the Conservative Party traditionally loathes the ECtHR, (11) the decisions of the court and political environment have not served to coalesce the political will of the governing coalition to change the status quo. It may also speak to the persistence of the institution once in place and, like the European Court of Justice (ECJ), its role in the integration of the European Union. (12) The JCPC is a relic of the British Empire. It is an extraterritorial court to the extent that states delegate legal decision-making authority to a court outside the physical jurisdiction with the states having no direct control over the composition or administration of the court seated in London.

The Judicial Committee of the Privy Council

With roots dating back to the twelfth century, the modern JCPC is the product of British legislative action by Lord Chancellor Brougham who introduced the Judicial Committee Act 1833, which created the modern JCPC (The Judicial Committee replaced the Appeals) Committee. (13) Formally described as an advisory body to the monarch, the JCPC possesses all the trappings of an appellate court of law. Appeals are heard by special leave from the JCPC as a right extended by royal prerogative or when granted by the lower court. (14) The JCPC is not just of historical significance but illustrates the importance and prominence in the jurisprudence of the British Commonwealth. (15) The branches of law on appeal are broad and important, with fundamental principles being adjudicated. (16) Examples of this diversity include extradition requests, constitutional challenges, libel cases, eminent domain, personal injury, and issues involving provincial verses federal power.

The development of the JCPC was part of the growth and consolidation of British colonial rule around the world and served as the final appellate court for the British Empire. (17) This rich and diverse history contributes to the positive reputation and the continuing role and influence of the Commonwealth's common law legal system. Newly independent states, however, did have the power to determine their status at independence. Commissions were established primarily to provide expert advice on constitutional issues in addition to proposing and drafting entire constitutions. (18) Colonial and local elite comprised these commissions and supported the legislative assembly. Of the fifty former colonies, thirty adopted the JCPC as the final appellate court. As states emerged from colonial rule, the number of states served by the JCPC and the number of cases both declined. With a peak of 119 cases in 1931, the JCPC adjudicated an average of fifty-two appeals per year from 1932 to 2014. Starting with the year the Act of Westminster came into law (1931), Figure 1 displays trends over time as the number of states decline and the corresponding change in the number decisions from 1931 to 2014. The number of cases includes the states, colonies, and territories that continue to retain the JCPC. The steep drop in the annual number of cases from 119 in 1931 to thirty-four in 1950 occurred when Canada and India replaced the JCPC in 1948 and 1950, respectively.

Although the number of countries declined from forty-eight in 1955 to ten (plus colonies and dependencies) in 2015, the number of cases per annum increased from thirty-nine in 1955 to forty-eight in 2015, illustrating a continued reliance on the JCPC. This review of the JCPC cases shows an uptick in appeals in death penalty cases from the Commonwealth Caribbean with a high point occurring in 1995 (sixty-one cases). Despite the gradual decline in the number of states, those remaining access the JCPC more frequently.

Court--State Dynamics

The final appellate court is the last judicial forum reviewing legal challenges, and its place in the hierarchy is well established. The court lends legitimacy to the policies of the dominant majority, which Robert Dahl describes as the "lawmaking majority in Congress." (19) This legitimizing role makes the judiciary an important participant in the national decision-making process (20) and is itself a "national policy maker." (21) Martin Shapiro refers to this notion as "political jurisprudence." (22) As challenges to policies deemed necessary for 'peace, order and good government' (POGG) percolate up the judicial hierarchy, legitimisation of those policies by the judiciary is an important issue. (23) POGG is linked to relationships between domestic and extraterritorial courts as states balance their interests. Robert Putman describes the entanglement of domestic (second image) and international (third image) politics as "two-level games." (24) At the national level, domestic groups pursue interests by pressuring government to adopt favorable policies. In his seminal work on the interaction of the second and third images, Peter Gourevitch cogently delineated the three inter-related domains: 1) the impact of international system on domestic structure (second image reversed); 2) domestic structure as a variable explaining foreign policy; and 3) the links between domestic and international politics. (25) Though research samples common law jurisdictions, the finding logically extend to civil law jurisdictions. The desire to have an ally in the court, as Dahl suggests, is not linked to the type of legal system. (26) This premise relies on the final appellate court decisions having the same effects regardless of the type of legal system and the response depends on the will of the governing coalition in the political environment regardless of legal system.

In the context of the British Commonwealth, Voigt, Ebeling and Blume compare the resulting...