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ILEL Essay Notes and Plans
To what extent is CIL part of English law?
Traditional view: it's automatically incorporated
LORD MANSFIELD CJ in Triquet v Bath (1764) who cites LORD TALBOT CJ in the Barbuit's Case (1736): "The law of nations in its full extent was part of the law of
o O'KEEFE says Lord Mansfield CJ's suggestion was "baseless", and that the term "the law of nations" used by his Lordship has a very different meaning at the time Mansfield LCJ was using it.
Duke of Brunswick v. King of Hanover
LORD DENNING MR in Trendtex v Central Bank of Nigeria (1977): "As the court have given effect to changes in CIL without any Act of Parliament, it follows that the rules of international law, as existing from time to time, do form part of English law,
provided that they are not inconsistent with Acts of Parliament. If that were not the case, the courts could not recognise changes in the norms of international law."
BLACKSTONE (1765), who was counsel in an early English case in which Lord
Mansfield approved of his position on his subject, argued: 'the Law of Nations . . . is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be part of the civilised world.'
o LAUTERPACHT spots an ambiguity in Blackstone's words noting that '. . . it is controversial whether in laying down the rule that international law was part of the law of the land Lord Mansfield and Blackstone were giving expression to an actual rule of English law at the time, or whether they were formulating a principle whose rationality appeared to them obvious and irrefutable regardless of its historical accuracy.'
o CAPPS: it may be that incorporation is right, but Blackstone's comments do not conclusively settle the matter. This is because he does not tell us whether customary international law can be applied by English courts because it is incorporated by virtue of its reasonableness or because of the existence of a norm in English law which operates as a formal source of the substantive or material international legal obligations.
o SALES AND CLEMENT: Blackstone was not confronted with a legal world in which these rules [of international law] were being changed or added to by processes external to the law-making arrangements set out in the constitution of the state. Further, he was writing at a time before the full development of democratic legal theory in the 19th and 20th centuries, and before the full development of credible democratic credentials of Parliament with the expansion of the franchise over that period. These twin developments call into question whether Blackstone's position can continue to be accepted in modern times. COLLIER notes an often-overlooked argument in favour of the incorporation doctrine: when,
as directed by the choice of law rules of private international law, or the conflict of laws, an
English court is called upon to decide a case by applying the law of a foreign country, France for example, that law has the status of fact. Like any other fact it has to be proved by evidence and, like some other kinds of fact, by expert witnesses, should its existence or content be contested. Rules of public international law are not treated thus. They have the status of rules of law. Of course, the existence of a rule or its content may be in doubt and the court will have to be satisfied in this respect, but this is done by the argument of counsel, not the evidence of witnesses, and judicial notice will be taken of the rules of public international law.
Is it really the traditional view?
As Lord Hoffmann in [Re McKerr (2004)] points out, international law and domestic law are very different sources" which create obligations belonging to "different legal systems", owed by "different parties", have "different contents" and "different mechanisms for enforcement". This begs the question—are the courts really simply "automatically" giving effect to CIL in English law? Or is something more subtle happening?
Given that international law, as Sawer [(1984) International Law in Australia] and Lord Hoffmann in
[Re McKerr (2004)] point out, relates to fundamentally different rights and obligations from domestic law, O'Keefe [(2008) BYIL] seems to correctly suggest that the courts are not in fact giving effect to
CIL directly (or "automatically"). Rather, in the cases where they have given effect to CIL (typically concerning immunities, less often piracy and in two instances, angary) they are creating an equivalent common law rule based on the status of CIL when it deems it appropriate to develop the common law in light of international law. As such O'Keefe suggests that what the courts are doing should not be viewed as a doctrine of "incorporation" as Lord Denning MR in [Trendtex v Central Bank of Nigeria
(1977)] suggests, but rather as a "doctrine of judicial transformation".
It is submitted that O'Keefe's view is correct. The function of international law is fundamentally distinct from domestic law, and so it is not quite correct to suggest that CIL "automatically" is part of
English law. This is simply not logical as international law and domestic law serve different functions and the former cannot simply apply in the context of the latter—it needs to be adapted and transposed into the domestic context.
Academic criticism of the traditional view:
O'KEEFE: in the many historical and modern cases where the court invoked the principle that CIL is automatically part of the domestic common law, they ended up not applying this principle because parliamentary legislation addressed the issue.
SALES AND CLEMENT: CIL has only ever been successfully applied in domestic courts concerning piracy, protection of diplomats, and sovereign immunity.
COLLIER: the occasions on which rules of customary international law fall to be applied by English courts are relatively few. The cases that have been discussed are to a large extent concerned with limited types of situation. Most of them are to do with immunities of foreign States and governments and of diplomatic agents or with territorial waters. That is to say, they concern questions of jurisdiction.
O'KEEFE says it is 'striking' that in R v. Jones (Margaret) two of the substantive judgments decline explicitly to affirm the accuracy of the proposition that CIL is automatically part of English law. He says that in recognising the proposition that CIL
is part of English law only where the constitution permits, the Lords acknowledge that the relationship between IL and English law is 'inescapably dualist'.
SALES AND CLEMENT: (1) it is possible that a state may become bound by a rule of CIL without having assented to it in any way, since under the modern statement of the relevant principle all that is required in practice is that a large majority of states accept the binding force of the rule in question; and, more generally, the legitimacy of the law-making process in relation to the formation of CIL is itself open to question.
(2) a rule of CIL is identified by reference to the practice of states, which may consist in the actions of the executive arm of a state without reference to legislative involvement. Breach of SOP.
Newer cases: it's a source and guides the development of the common law
Lord Mance in Keyu (2015): "Common law judges on any view retain the power and duty to consider how far customary international law on any point fits with domestic constitutional principles and understandings. Domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law…The presumption…is that customary international law, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite
Parliamentary intervention or consideration."
Lord Bingham in R v. Jones (Margaret) (2007): 'there seems to be truth in Brierly's contention… that international law is not a part, but is one of the sources, of English law.'
LORD HOFFMANN in R v. Jones (Margaret): 'I say nothing about the reception into
English law of rules of international law which may affect rights and duties in civil law.'
o Suggests that while new crimes clearly cannot be automatically incorporated,
perhaps there can be automatic incorporation in other areas of the law.
o LORD MANCE also said that 'it is unnecessary to consider the recognition or reception of international law in the context of civil law.'
Academic support for this view: Collier and Brierly
Limits to the role of CIL
It's a source only where this wouldn't contravene constitutional principle:
LORD MANCE in Keyu: "speaking generally, in my opinion, the presumption when considering any such policy issue is that CIL, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration."
R (on the application of Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs (Court of Appeal): CIL 'will only be received into the common law if such reception is compatible with general principles of domestic constitutional law.'
R v. Jones (Margaret): 'the recognition at common law must itself not abrogate a constitutional or common law value.'
O'KEEFE: 'customary international law is applicable in the English courts only where the constitution permits.' Specific areas where CIL cannot be recognised as part of the common law:
Where Parliament has pre-empted the area covered by the rule. Unambiguous statute will be applied over rule derived from CIL, even if it places the UK in breach of its international obligations.
R v. Jones (Margaret): it would be anomalous to treat the crime of aggression as part of domestic law given that the International Criminal
Court Act 2001 had deliberately excluded that crime when giving domestic effect to other crimes recognised under international law
Creation of new crimes - only Plmt can do this (R v. Jones (Margaret))
o LORD BINGHAM: there is a democratic principle that 'it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties.'
o Also, the HL cited COCKBURN CJ in R v. Keyn: 'nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of
Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature.'
Where the common law would not permit it: CIL can be accepted only insofar as the common law permits (Chung Chi Cheung v The King (1939) per Lord Atkin)
Where the rule is one between states alone and the court may not adapt it for application in English law (R v. Keyn)
Where rule derived from customary international law would be non-justiciable
(R v. Jones (Margaret)). As LORD HOFFMANN explains:
o There is the theoretical difficulty of the courts, as the judicial branch of government, holding not merely that some officer of the state has acted unlawfully but, as a sine qua non condition, that the state itself, of which the courts form part, has acted unlawfully.
o There is the practical difficulty that the making of war and peace and the disposition of the armed forces has always been regarded as a discretionary power of the Crown into the exercise of which the courts will not inquire.
SALES AND CLEMENT: for the court to adapt CIL into the common law, there must be a
"point of reference in domestic law to which the international law issue can be said to go to."
CAPPS suggests it's the subject matter which affects whether CIL can be automatically incorporated into English law
He notes that in R v. Jones (Margaret), when it comes to private or administrative law, the
HL exhibit a preparedness to allow custom to give rise to justiciable standards even though such standards have not been transformed by legislation (see Lords Hoffmann and Mance above). He considers the case of Kuwait Airways Corpn v Iraqi Airways Co (nos 4 and 5):
Facts: in August 1990 Iraq invaded Kuwait and passed resolutions proclaiming its integration into Iraq. In September 1990, Iraqi Airways Co (IAC), under orders of the
Iraqi Government, seized aircraft owned by the Kuwait Airways Corporation (KAC).
By virtue of Resolution 369, the Iraqi Government purported to dissolve KAC and transfer its assets, including the aircraft, to IAC. Some of the aircraft were destroyed
during the first Gulf war and after the war KAC brought a claim in an English court for damages. The applicable rule was the 'double actionability rule': this meant that for the claim to proceed, KAC had to show that (i) the acts done by IAC would have been tortious if done in England and (ii) the acts were tortious in the place where the act occurred. The problem for KAC was that under Resolution 369, the aircraft were not owned by them and therefore, by applying Iraqi law, there was no tort and the claim could not proceed.
Their Lordships determined, by applying Oppenheimer v Cattermole, that an English court can refuse to apply foreign law if it is contrary to principles of public policy or justice. They found that '[t]he seizure and assimilation [of the aircraft] were flagrant violation of rules of international law of fundamental importance.'
This case strongly suggests that the prohibition of aggressive acts by states under international law is recognised as giving rise to actionable standards under English law. It indicates that there is more freedom to transform CIL on public policy grounds with regard to claims under private and public law.
To compound this criminal/non-criminal distinction, in recent decisions, English courts have been prepared to use international treaties as well as Security Council resolutions as standards which are justiciable in non-criminal cases (R (Al-Jedda) v.
SoS for Defence).
This leads to a tentative but plausible conclusion that the orthodox distinction between treaties and customary international law seems to have been altered to become one which rests upon the subject-matter of the dispute.
To what extent are treaties part of English law?
They're not - they must be transformed by the legislature
In Re McKerr: LORD HOFFMANN: 'it should no longer be necessary to cite authority for the proposition that … an international treaty … is not part of English domestic law'.
International Tin Council: LORD TEMPLEMAN: a non-incorporated treaty was '. . .
outside the purview of the Court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant'.
Miller: 'although they are binding on the United Kingdom in international law,
treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.'
R v Secretary of State for the Home Department, Ex parte Brind:
o Facts: legislation at issue: Broadcasting Act, which gave discretion to the
Home Secretary to ban broadcasting certain things. Northern Ireland
Emergency Powers Act - HS told BBC not to show images of Sinn Fein/IRA
speaking on TV. You could report on what they said but not put actual members on screen. Journalists brought claim for JR re Art 10 ECHR, but this case was pre-HRA. Journalists say if ambiguous legislation is interpreted in harmony with the ECHR, the Minister's discretion should be interpreted as having to be exercised in conformity with the UK's international obligations.
o Held: if courts could through admin law say that the Minister had not exercised his discretion properly, this would in effect be for courts to enforce
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