No Domestic Foothold Where SELC Is Disapplied: Court of Appeal narrows treaty- and CIL-based challenges to national security export decisions

Introduction

In Al-Haq, R (On the Application Of) v Secretary of State for Business and Trade [2025] EWCA Civ 1433, the Court of Appeal (Civil Division) refused permission to appeal a Divisional Court decision that had declined permission to bring judicial review proceedings against the Secretary of State’s September 2024 decision to suspend UK export licences to Israel while carving out supplies of UK F‑35 components to the Global Spares Pool (the “F‑35 Carve Out”).

The claimant, Al-Haq, an independent Palestinian human rights organisation, argued that the carve-out was unlawful because it contravened the UK’s international obligations—under the Geneva Conventions, the Arms Trade Treaty, and the Genocide Convention—standards reflected in the UK’s Strategic Export Licensing Criteria (SELC). It also argued that relevant customary international law (CIL) obligations had been received into domestic law or were essentially reflected in the common law. The Secretary of State maintained that the carve-out was an exceptional, specific measure taken outside SELC, premised on compelling national security and international peace and security considerations bound up with the integrated, multinational F‑35 programme.

Three issues reached the Court of Appeal for an oral permission hearing:

Ground 1: Whether SELC provided a “domestic foothold” enabling the court to interpret and apply unincorporated international obligations.
Ground 2: Whether the CIL obligations invoked by the claimant were received into, or essentially reflected in, the common law.
Ground 5: Whether the Divisional Court erred in finding the claim would require adjudication on the lawfulness of Israel’s conduct (foreign act of state).

The claimant also attempted to reopen a separate permission refusal (Ground 3) under CPR 52.30, which alleged an irrational process in the Secretary of State’s decision to depart from policy, and sought a Costs Capping Order if permission were granted.

Summary of the Judgment

Lady Justice Whipple (with Lady Justice King agreeing) dismissed the application to reopen Ground 3 and refused permission to appeal on Grounds 1, 2, and 5. The Court held:

Reopening (CPR 52.30): No exceptional mistake or real injustice; Andrews LJ had “grappled” with the issues when refusing permission on paper, meeting the standard articulated in Municipio de Mariana v BHP Group plc.
Ground 1 (Domestic foothold via SELC): The Divisional Court’s core factual finding—that the Secretary of State did not purport to apply SELC but consciously adopted a “specific measure” outside that policy—was plainly open to it. Absent the policy’s application, the court had no domestic foothold to interpret unincorporated treaties. This factual finding was dispositive.
Ground 2 (CIL in the common law): The Divisional Court was entitled both to doubt the existence of a “widespread, representative and consistent” state practice supporting the asserted duties and, in any event, to identify positive constitutional reasons not to receive such CIL in circumstances that would constrain the executive’s judgment on defence, national security, and foreign relations.
Ground 5 (Foreign act of state): Whether or not the doctrine ultimately applied was academic given the dispositive factual finding on SELC disapplication. The ground lacked real prospects.
No other compelling reason: Even if some of the broader constitutional and public international law questions were interesting, they did not justify granting permission because the appeal had no real prospect of success.
Costs Capping Order: Did not arise.

Detailed Analysis

1) Precedents and authorities cited

The Court of Appeal and the Divisional Court drew on a small but significant set of authorities:

Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156; [2022] 1 WLR 919: Provides the stringent standard for reopening decisions under CPR 52.30. The judge must have failed in some exceptional way (e.g., not grappling with a clearly articulated point) to avoid real injustice. The Court held Andrews LJ met this standard; there was no “exceptional mistake.”
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62; [2019] AC 777: Establishes the two-stage approach for receiving CIL into domestic common law: (i) the asserted rule must be shown by “widespread, representative and consistent” state practice accepted as law; and (ii) reception must not be blocked by a “positive reason of constitutional law.” The Court endorsed the Divisional Court’s use of this framework and its conclusions on both limbs.
R v Registrar General, ex p Smith [1991] 2 QB 393: The presumption against construing legislation to facilitate serious crime. The Divisional Court rejected an expansive reading of Smith in this context, holding the F‑35 carve-out did not facilitate criminality in the sense required. Although this point was not directly before the Court of Appeal, it formed part of the backdrop to the lower court’s rejection of the ultra vires challenge.
Practice Direction (Citation of Authorities) [2001] 1 WLR 1001: Cautions against citing permission decisions unless they contain a new statement of principle not otherwise reported. The Court flagged that neither the Divisional Court’s refusal of permission nor the instant refusal should ordinarily be cited beyond any novel point.

The judgments also engaged statutory and policy materials:

Export Control Act 2002 and the Export Control Order 2008: Provide the legislative framework for export licensing.
SELC (8 December 2021): Guidance issued under s.9 of the 2002 Act, including Criterion One (respect for international obligations, including the Arms Trade Treaty) and Criterion Two(c) (no licence where a “clear risk” items might be used in serious IHL violations). Crucially, SELC is expressly stated to be “without prejudice” to specific measures that may be announced to Parliament.
Geneva Conventions Act 1957 and International Criminal Court Act 2001: Domestic implementation of aspects of IHL and international criminal law.
Arms Trade Treaty, Geneva Conventions (Common Article 1), and the Genocide Convention: The international obligations said to underpin Criterion One and invoked as independent constraints.

2) Legal reasoning and how the decision was reached

a) The “domestic foothold” and SELC’s disapplication (Ground 1)

The claimant’s central strategy was to use SELC as the bridge that allowed a domestic court to interpret and apply unincorporated treaties (Geneva Conventions, Arms Trade Treaty, Genocide Convention). The Divisional Court, and now the Court of Appeal, rejected that route on a pivotal factual finding: on 2 September 2024, the Secretary of State did not purport to apply SELC to the F‑35 carve-out. Rather, he adopted an exceptional, “specific measure” of the kind contemplated in SELC’s own introductory statement (“without prejudice to… specific measures… announced to Parliament”).

The Court of Appeal treated this as a finding of fact based on contemporaneous materials and the decision record. Appellate interference with such findings is circumscribed. Once the factual predicate was fixed—that the decision was taken outside SELC—there was no policy “hook” enabling the domestic court to adjudicate the underlying treaties. The Court’s reasoning is tight: even if one were to debate non-justiciability or the appropriateness of a “tenable view” of international law, those questions would not matter unless the policy was actually engaged. It was not.

b) Customary international law and the Benkharbouche test (Ground 2)

The claimant contended that CIL supplied freestanding domestic constraints: (i) an obligation to ensure respect for the Geneva Conventions; (ii) an obligation to prevent genocide; and (iii) a prohibition on facilitating internationally wrongful acts. The Divisional Court’s analysis (which the Court of Appeal endorsed as non-arguable on appeal) took two steps:

Step 1: Has the claimed CIL rule been proved? The Divisional Court was “prepared to assume, without deciding,” that such norms exist in international law, but it also observed that the evidential record before it fell short of demonstrating “widespread, representative and consistent practice” at the particular level of specificity asserted—namely, that where State A assesses State B as not committed to IHL compliance, A must suspend participation in a complex, integrated multinational supply programme. The Court of Appeal regarded that assessment as open to the Divisional Court on the materials.
Step 2: Constitutional compatibility with reception into the common law. Even if the asserted norms could be shown as CIL, the Divisional Court identified “positive reason[s] of constitutional law” not to receive them into domestic common law in a way that would constrain the executive’s judgment on defence, national security, and foreign relations. Parliament had already decided what to implement domestically (e.g., via the 1957 and 2001 Acts). The executive’s calibration of competing imperatives—here, the imperative to avoid “a critical impact on international peace and security” in the F‑35 programme—falls within constitutionally reserved domains. The Court of Appeal agreed that this was a legitimate constitutional barrier to reception.

c) Foreign act of state and justiciability (Ground 5)

Although the Divisional Court had reasoned that the claim would require adjudicating on the lawfulness of Israel’s conduct (engaging the foreign act of state doctrine), the Court of Appeal considered the point academic in this case. The dispositive factual finding about SELC’s non-application meant there was no realistic prospect of success regardless of the act of state analysis. The Court thus declined to engage further: even if the claimant’s refined posture (relying on the UK Government’s own IHL assessment of Israel rather than asking the court to adjudicate Israel’s conduct) narrowed the justiciability concerns, the appeal still failed because the legal foothold (SELC) was absent.

d) Reopening under CPR 52.30 and the “process irrationality” challenge (Ground 3)

The claimant said Andrews LJ had misunderstood its “process rationality” complaint, especially given an earlier interlocutory ruling (by Chamberlain J) that prevented a challenge to the Government’s methodology for assessing IHL risks. The Court of Appeal rejected this, holding that Andrews LJ had clearly “grappled” with the arguments and that there was no exceptional mistake warranting reopening.

Substantively, the Court explained there was no inconsistency in the Government’s position. Across all stages it maintained that, whatever the assessed level of IHL risk by Israel, the national security and international peace and security consequences of disrupting the integrated F‑35 programme overwhelmingly justified the carve-out. The Divisional Court’s description of the process as “careful and thorough” was not an endorsement of any specific “methodology” that had been excluded from challenge; rather, it reflected permissible scrutiny of the decision-making process appropriate to the grounds that actually remained live.

e) “Tenable view” of international law and “compelling reason”

The Divisional Court had adopted a “tenability” approach to contested international law (asking whether the executive’s view was tenable). The Court of Appeal expressed no view on the ultimate correctness of that approach; with the crucial factual finding on SELC disapplication, the broader constitutional debates became academic. The Court declined to find any “compelling reason” to grant permission solely to address those legal questions in the abstract.

3) Why this decision matters

Policy disapplication closes the treaty door: The principal practical effect of this judgment is to confirm that when the Secretary of State consciously frames an export control decision as a “specific measure” outside SELC, courts will not use SELC to create a domestic foothold to apply unincorporated international law. That route depends on the policy being applied. If it is not, the court will not treat SELC as a conduit for treaty adjudication.
Stringent limits on CIL-based constraints: The decision reinforces a high bar to relying on CIL to restrict the executive’s discretion in matters touching defence, national security, and foreign relations. Even if norms exist on the international plane, receiving them into the common law will be refused where doing so would intrude into constitutionally reserved government functions, especially in highly integrated multinational defence programmes.
Deference in national security export decisions: The courts will accord a high degree of deference to the executive’s assessment of the international security ramifications of disrupting defence supply chains. Arguments that hinge on recalibrating those macro-level assessments are unlikely to succeed unless tethered to a clear domestic legal hook.
Reopening is exceptional: The Court reiterates the extreme narrowness of CPR 52.30. Tactical attempts to re-ventilate permission refusals will fail absent an exceptional mistake causing real injustice.
Judicial economy and non-academic appeals: Even significant public interest and constitutional questions will not justify permission if the appeal has no real prospects on the facts. The Court emphasised the non-citable character of permission decisions and the improper use of appellate resources for academic debate.

Complex Concepts Simplified

Domestic foothold: UK courts generally do not enforce unincorporated treaties. A “domestic foothold” is a domestic law basis—like a statutory duty or applied policy—that allows the court to consider treaty obligations indirectly. Here, SELC could have provided such a foothold if it had been applied; it was not.
SELC and “specific measures”: The Strategic Export Licensing Criteria guide licensing decisions, including respect for international obligations (Criterion One) and a “clear risk” bar for IHL violations (Criterion Two(c)). SELC also reserves space for “specific measures… announced to Parliament,” enabling the Government, in exceptional cases, to act outside the policy framework.
Customary international law (CIL) and Benkharbouche: For a CIL rule to become part of domestic common law: (i) it must be proved by widespread, representative, and consistent state practice accepted as law (opinio juris); and (ii) it must be compatible with constitutional principles—courts will not receive CIL if it would trench on areas reserved to the executive or contradict legislative choices.
Foreign act of state: A doctrine limiting courts from adjudicating the lawfulness of foreign states’ sovereign acts. The Divisional Court thought the claim would engage this doctrine; the Court of Appeal did not need to decide because the case failed on another ground.
“Tenable view” approach: A judicial stance of asking whether the executive’s reading of contested international law is at least “tenable,” reflecting deference in matters affecting foreign relations. The Court of Appeal left this point open.
CPR 52.30 reopening: A very narrow power to reopen an appeal to avoid real injustice in exceptional circumstances, such as a failure to grasp a clearly articulated argument. Mere disagreement with reasoning is insufficient.
Rolled-up hearing: A procedural device where permission for judicial review and the substantive merits are heard together, streamlining complex cases.
Costs Capping Order (CCO): An order limiting liability for costs in public interest litigation. It becomes moot if permission to appeal is refused.

Concluding Observations

This judgment crystallises three important propositions in UK public law regarding arms export controls and the interface with international law:

Policy as gatekeeper: Where the Government explicitly disapplies its export licensing policy (SELC) by invoking an exceptional “specific measure,” courts will not use SELC to adjudicate unincorporated treaty obligations. The “domestic foothold” is absent unless the policy is actually applied.
CIL’s limited domestic traction in national security contexts: Even assuming the existence of international norms aimed at preventing serious violations, the court will not receive them into the common law if doing so would impede the executive’s constitutionally allocated responsibilities in defence, foreign relations, and national security, particularly within integrated multinational defence programmes.
Appellate restraint and judicial economy: The Court of Appeal’s refusal to entertain broader doctrinal debates (tenability, act of state) in the absence of real prospects reinforces a pragmatic approach: where a dispositive factual finding is unassailable, permission will be refused, and reopening under CPR 52.30 will rarely be available.

For future litigation, this decision counsels careful focus on the domestic legal predicates of export decisions. Claimants seeking to ground judicial review in international law will need either (i) a clearly engaged domestic policy instrument (like SELC) that has actually been applied to the decision, or (ii) a statutory foothold. Attempting to deploy unincorporated treaties or broad CIL obligations to constrain defence and foreign policy decisions—without more—faces a steep constitutional incline.