ILEL ESSAYS
2023 Q2 ‘[J]udges… may face a policy issue as to whether to recognise and enforce a rule of
customary international law. However, given the generally beneficent character of international law,
the presumption should be in favour of its application. … Judges are increasingly aware of customary
international law as a resource on which they can draw as appropriate and are increasingly willing to
do so.’ (LLOYD-JONES) (2022) Discuss
This was an extremely popular question. It attracted a range of answers. The best answers identified
the different parts of the quote and addressed all of them. These answers were analytical and engaged
with the case law. Weaker answers addressed some parts of the quote but not all or addressed the
different parts of the quote but did not connect them. Some answers answered the question from the
perspective of judges of the ICJ. Although that was not the intended meaning of the question, as the
question could be read in that way, that reading was taken on its own terms.
2 ‘Although international law is sometimes applied by English judges and English law is sometimes
relevant in the process of making and applying international law, the relationship between these two
legal systems has always been subject to the overriding principle of Parliamentary sovereignty.’
Discuss.
As noted above, the principal weakness of some answers to Question 2 was the failure to consider the
relevance of English law in the process of making and applying international law. The application of
international law by English judges was addressed reasonably well with full discussion of the
approaches taken to treaties and customary international law. The best answers explained why
Parliamentary sovereignty might be treated as an overriding principle
[2021 Q3] ‘English courts have recognised that the relationship between English law and international
law is based on two presumptions: that international law shapes the common law, and that Parliament
does not intend to legislate contrary to the UK’s international obligations. Yet English law’s
relationship with international law remains decidedly dualist.’ Discuss.
ER: This was a popular question. Good answers thought critically about the two presumptions and
made good use of cases and examples to illustrate their points. They then reflected on whether English
law has a dualist relationship with international law in light of their discussion on the two
presumptions, as well as considering other relevant points. The best answers engaged with the tension
between the two sentences in the quote. Weaker answers provided a rehearsed essay on monism and
dualism without doing anything with the material and/or argued without nuance that English law
‘clearly’ has a dualist relationship with international law.
[2020 Q5] ‘The rules governing the relationship between international law and English law do not
promote compliance with the UK’s international obligations.’ Discuss.
ER: This was a very popular question but it was not done particularly well. A lot of candidates wrote
what they knew about the rules governing the relationship between international law and English law
– and often did a good job of summarising the current position – but made only a cursory comment on
the heart of the quote: whether it promotes compliance with the UK’s international obligations. As
such, it felt like these were answers to a question that was not asked. Strong answers structured their
answer around the question of compliance and talked not only of how international law is received in
English law, but also how English law is treated by international law and what that means for
compliance with the UK’s obligations.
[2019 Q7] ‘English courts are inconsistent in their approach to international law. On the one hand,
undemocratic customary international law is part of the common law; on the other hand, even those
international human rights treaties to which the UK is a party are not a source of English law.’
Discuss.
, ER: The different reception of treaty law and of customary international law in English law has been
a frequently appearing topic. That may explain why students generally did very well in evaluating the
inconsistency claim in the quote. A first-class answer, however, also folded into that discussion the
relevance of the claim about customary law being undemocratic. Whereas many answers were strong
in their discussion of the constitutional principles that govern the reception of both treaties and
customary international law, fewer engaged explicitly with the question how this matters from the
perspective of democracy.
[2018 Q8] ‘Given the loose way by which customary international law is nowadays being identified
and interpreted by unaccountable international tribunals, customary international law should no longer
be applied by UK judges.’ Discuss.
ER: This question on the identification of customary international law and its status in UK law was
answered by 58% of candidates. Good answers began with an elaborate description of the different
approaches by courts and commentators to the status of customary law in UK law, and offered
explanations for the different approaches. Given these approaches and their explanations, the
candidates were expected to explain whether UK courts were bound by the findings of international
courts about what amounts to CIL. The less impressive responses regurgitated well prepared essays on
either customary international law or on the role of customary international law in UK courts.
[2017 Q4] ‘There is a culture in which it is possible to become a practising lawyer without having
studied international law, and indeed to become a judge knowing no international law.
Psychologically that disposes both counsel and judge to treat international law as some exotic branch
of the law, to be avoided if at all possible, and to be looked upon as if it is unreal, of no practical
application in the real world. Of course, this attitude is mostly to be found in those countries that
embrace the dualist system. It is not an unfair description of some courts in the UK.’ (HIGGINS)
Discuss. Should UK courts be more willing to give effect to international law?
ER: Question 4 was, by the narrowest of margins, the most popular question on the paper, with just
over 57% of candidates attempting it. The quotation invited some creative rejoinders, with a few
candidates noting that it was indeed unfortunate that Paper 38 wasn’t compulsory. On the whole,
candidates engaged admirably with the quotation, using case law examples to assess whether judges
treat international law as ‘exotic’ and ‘unreal’, with ‘no practical application’. Most answers
challenged the statement that the UK was dualist, with better answers drawing out the nuances in
English law’s approach to treaties and customary international law. Strong answers specifically
considered cases where the courts had given effect to customary international law or unincorporated
treaties, and the reasons for this. Some candidates failed to address the second part of the question, on
whether the courts should be more willing to give effect of international law. On this point, some
candidates argued that constitutional principles rightly constrain English courts from giving greater
effect to international law, whereas others argued that international human rights law represented a
special category of obligations which courts should more willingly embrace. It was disappointing that
most candidates assumed the author of the quote was a man.
[2016 Q4] ‘Democratic accountability and legitimacy considerations have long formed part of the
process by which international law is received in the English legal system.’ Discuss.
ER: This was the second most popular question on the exam – almost 65 percent of candidates
attempted it. It also produced the second best set of answers on average. Candidates who closely
engaged with this particular statement were rewarded, whereas those who wrote prepared essays on
how international law entered the English legal system did themselves no favours. Strong answers
evidenced wider reading and critical appraisal of the evolution of the case law. It was refreshing to
read those essays who gave a critical response to O’Keefe, Clement and Sales. A few answers
discussed legitimacy also from the perspective of legitimate constraints on democracy (through a
human rights lens). The word ‘long’ indicated that candidates were expected not only to state the
contemporary position, but also to place it in historical context. Candidates were well-advised to
