The increasing importance of international law was stressed by Lord Bingham who observed1 that international law used to be seen as an ‘esoteric preserve’ that did not feature significantly in the work of ‘ordinary practitioners and national courts’, but that: “Times have changed. To an extent almost unimaginable even thirty years ago, national courts in this and other countries are called upon to consider and resolve issues turning on the correct understanding and application of international law, not on an occasional basis, now and then, but routinely, and often in cases of great importance”. The main issues that arise and must be examined when scrutinising the application of international law in UK courts are two2: On a theoretical level and as to the nature of the relationship; whether the domestic and international law are part of a Universal code of law and must be aligned down the line (monist theory) or whether they are two distinct systems of law (dualist theory).. Secondly, in practice, how conflicts between the two systems and issues arising from that should be dealt with.
Nature of relationship
There are three prevailing theories on the relationship between the two types of law.
The dualist doctrine separates the two systems and suggests that international law is applicable to issues among states while domestic law is applied by sovereign states on a domestic level. Where there is a conflict, domestic law prevails3. Treaties only apply to the signatory countries and only when they have been incorporated in their National legislation4. The UK follows the dualist approach with respect of treaties.
1. Lord Bingham, ‘Foreword’ in S Fatima, Using International Law in Domestic Courts (Hart Publishing, Oxford, 2005).
2. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) page147 3. H. Triepel, ‘Les Rapportsentre le Droit Interne et le Droit International’ (1923-1) RCADI, 73-121 4. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) page147
Monism on the other hand developed by Kelsen5 but first outlined by German scholar W. Kaufmann6 is increasingly adopted by the EU. It suggests that International law and domestic law are interconnected with the first prevailing as of higher authority, thus it is not necessary for a state to incorporate international treaties for them to be applicable. They are automatically considered as part of the law of the land. Professor Hersch Lauterpacht’s article entitled, “Is international law a part of the law of England?” which appeared in the Transactions of the Grotius Society7 was along the lines of Blackstone’s8 view that the customary law of nations is adopted in its full extent as part of the law of England: “… the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land”.
The Fitzmaurice Doctrine
Sir Gerald Fitzmaurice and Dionisio Anzilotti (former judges of the World Court) in an opinion given in a case in 19399 introduced the concept that there should be no merge of the two systems as they act upon separate fields of interest. Where conflict occurs and if nothing can be done by the state to accommodate international legislation then the state law will prevail but this way the state will have breached its international obligations. The system to be followed depends on the constitution of each state. In the UK the dualist system has been adopted. In order to make a treaty effective in the UK, local legislation must incorporate the changes. Which Rule prevails in the event of conflict in UK Courts? There are two approaches available to the courts in respect of a conflict; the doctrine of incorporation and the doctrine of transformation10. They are applicable to both treaties and customary law. Doctrine of incorporation
This inclusive doctrine is the prevailing in the UK regarding customary law and suggests that customary international law is directly effective in the UK provided that there is no conflict with an Act of Parliament. There is no need for any constitutional procedure to transform it to domestic law. 5. Hans Kelsen, Pure theory of law, (Berkeley, CA: University of California Press, 1967) 332-4. 6.W.Kaufmann, Die Rechtkraft des Internationales Rechtes und das Verhaltnis der Staastsgesetzgebungen und der Staastorgane zu demselben (Stuttgard: F. Enke, 1899). 7. (1939) Transactions of the Grotius Society 51
8. William Blackstone, Commentaries on the Laws of England, (ed 3, illustrated, reprint, Lawbook Exchange Limited, 2003) 1202. 9. The Electricity Company of Sophia and Bulgaria, (1939) Ser A/B, No 77 10. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) page152 Doctrine of Transformation
It is an exclusive doctrine which suggests that International law is not part of the land unless it has been incorporated by an Act of Parliament. This is the doctrine the UK Courts follow in respect of treaties. The reason why treaties follow a different doctrine in the UK is that they are ratified by the executive and the Parliament has no direct involvement. Treaties cannot have direct effect because that would mean law being passed without recourse to Parliament and that would generate constitutional complications. Which of these two approaches, the courts adopt in each case depends on the source of International law. It differs for customary law and for treaties. Customary law
In Buvot v Barbuit11 Lord Chancellor Talbot introduced the concept that ‘the Law of Nations in its full is part of the Law of England’. International customary law was considered as automatically incorporated in UK Law. Some claim that there was a change to transformation theory and they site the case R v Keyn (The Franconia) 12 authority which led to the Territorial Waters Jurisdiction Act 1878. Its ratio decidendi was ambiguous because of the eleven judgements given. However Lord Cockburn supported transformation by stating that regardless of whether international Law admittedly recognises a three mile territorial sea, it is not the courts position to usurp the role of Parliament and pass new legislation. Despite his approach the position the courts later seemed to have adopted incorporation for customary International law. In Mortensen v Peters13 a Danish captain was convicted by a Scottish court for contravening fishing law regarding the “Moray Firth” because he had operated his ship in the Moray Firth within an area covered by the relevant bylaw but this was beyond the 3 mile limit recognised by international law at the time. The captain appealed to the Scottish court of Justiciary and upon appeal, LJ Dunedin said that Statue law was superior to customary law and Act of Parliament was given priority over custom even if this was in breach of international law.
11. Buvot v Barbuit (1737) Cas. Temp.Talbot 281
12. R v Keyn (The Franconia)(1876) 2 Ex D 63
13. Mortensen v Peters (1906) 14 SLT 227
In a later case Chung Chi Cheung v The King14 before the Privy Council the doctrine of incorporation was affirmed with Lord Atkin stating that international law “… will be treated as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statues or finally declared by their tribunals”. This is the current approach of the courts too as seen in the more recent case Trendtex Trading Corporation v Central Bank of Nigeria15. Three CoA Judges accepted the incorporation doctrine as the correct approach within the UK Courts. It involves a claim for sovereign or state immunity for the central Bank of Nigeria. Here, Lord Denning expressly stated “… between these two schools of thought, I now believe that the doctrine of incorporation is correct”, thus leaving from the doctrine of transformation (discussed below). He also made a second point that there is no stare decisis doctrine in International law. Courts would still be bound by precedent regarding a UK rule but not regarding an International law rule. It would now be open to the courts to apply changes to rulings without having to follow judicial precedent if in the meantime International law has changed. According to LJ Shaw the court must discover what the prevailing rule is and apply that rule. The decision regarding which doctrine should be followed has been reaffirmed in a number of more recent cases such as Westland Helicopters ltd v Arab organisation for industrialisation16 and various judgments in the controversial Pinochet cases17. In order for incorporation to apply there must be evidence of customary International law. If the evidence is inconclusive then the court may only rely on domestic legislation. The courts may, on their own accord, seek for evidence in textbooks and other reliable sources but there is no need for it to be proven as fact by expert evidence unlike the position for rules of foreign municipal law. In West Rand Central Gold Mining Co v The King18 case, Lord Alverstone said that “whatever had received the common consent of civilised Nations must also have received the ascent of the UK and thus would apply by domestic tribunals. Any alleged rule of international law would have to be proved by satisfactory evidence, recognised and acted upon by our own country or else be of such a nature that it could hardly be supposed that any civilised state would repudiate it.”
14. Chung Chi Cheung v The King  AC 60
15. Trendtex Trading Corporation v Central Bank of Nigeria  QB 529; Appeal decision; ILDC 1735 (UK 1977) 16. Westland Helicopters Ltd v Arab Organisation for Industrialisation  2 All ER 387 17. UK Parliament, ‘Judgment - In Re Pinochet’,
http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm , accessed 24/04/2013 18. West Rand Central Gold Mining Company, Limited v. The King, .2 K.B. 391
As mentioned above it is necessary in the UK for Parliament to ratify treaties. This is known as the Ponsonby principle. On 1 April 1924, during the Second Reading Debate on the Treaty of Peace (Turkey) Bill, Mr Arthur Ponsonby19 (Under-Secretary of State for Foreign Affairs in Ramsay MacDonald's first Labour Government) gave a speech that dictated that most international treaties had to be laid before Parliament 21 days before ratification. On 11 November 2010 Part 2 of the Constitutional Reform and Governance Act20 was brought into force by a commencement order effectively putting the Ponsonby rule on statutory footing. The crown signs and ratifies treaties but such treaty may only be enforced by legislation or an Act of Parliament. The difference between ratification and accession is that ratifying is being a part of treaty making while accession is that you sign up to an existing treaty. Treaties are generally speaking not self-executing, in fact they are not part of English law unless and until they have been incorporated into law by legislation. For this reason, individuals cannot directly derive rights and obligations from treaties. Self-executing treaties do not need enabling legislation. A very rare example is treaties relating to the session of territory and also the conduct of war would be typical examples of executing treaties21. Treaties dealing with unimportant administrative matters would also fall under this category. In The Parlement Belge22, a cargo ship belonging to the King of Belgium collided to a tug boat. There was a high court action against the owners of the tug boat for damages. The attorney general challenged the jurisdiction of the court on the basis that the ship was the property of a foreign sovereign who was immune from legal process. Additionally by treaty the immunity attached into the state’s warships was extended to civil ships. Only public ships of war had immunity. Treaty could not extend such immunity to other categories without Parliamentary consent. This would be contrary to the law of constitution. A recent decision which supports the transformation doctrine in respect of treaties is found in Department of Trade v Maclaine Watson23. The issue arising was whether an international organisation could be sued directly for liabilities under a treaty. It was found that the treaty had to be incorporated in National law to be effective.
19. UK Parliament, ‘Appendix 5: The Ponsonby Principle’, http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23612.htm#note186, accessed 24/04/2013 20. The Constitutional Reform and Governance Act 2010 (Commencement No. 3) Order 2010 21. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) page149. 22. The Parlement Belge. (1879) 4 PD 129a 23. Department of Trade v Maclaine Watson  2 AC 418
Another supporting example is the European Communities Act24 which came into force to endorse the Treaty of Rome and render it effective in the UK. UK Courts can also be authorised by statue to apply international law directly to cases before them. Examples on this principle frequently stem from the International law of prize (law of the sea) (The Scotia25). Further, it is open to the courts to override UK delegated legislation such as an Order in Council if it is contrary to a rule of international law but not an Act of Parliament which must be respected (The Zamora26). Furthermore, in specific circumstances, the UK Parliament itself has directly given jurisdiction to Courts for applying international law. The War Crimes Act27 gives jurisdiction to UK courts over crimes of murder or similar offences, committed by UK residents or citizens and related to World War II crimes. Treaties and interpretation
Another issue which poses difficulties in courts is that of interpretation of treaties. The treaties themselves may not be of direct effect but their interpretation is taken into consideration by UK judges when passing their judgment. The UK may incur liability for failure to comply with its international obligations, nevertheless the courts are obliged to uphold statue passed by the Parliament. There are generally three schools of treaty interpretation28: The textual school which looked to the ordinary meaning of the text. Interpretation would focus on the words of the script all of which would be interpreted with their ordinary meaning. In the case Competence of the General Assembly29 the court ruled that it ought to give effect to provisions of a treaty ‘in their natural and ordinary meaning in the context in which they appear’. Presumably, the words will not be strictly interpreted according to their grammatical meaning but the full context will be taken into consideration. The intentionalist school which attempted to identify and focus on the intentions of the drafters. The teleological school which focused its interpretation on the scope and objective of the treaty.(Free City of Danzing and the ILO30). 24. European Communities Act 1972
25. The Scotia (1871) 14 Wallace 170
26. The Zamora ) 2 AC 77
27. War Crimes Act 1991
28. Fitzmaurice Malgosia, Olufemi A. Elias, Contemporary issues in the law of treaties, (Eleven International Publishing, 2005)page 218 29. Competence of the General Assembly (1950) ICJ Rep., p4, at p8 30. Free City of Danzing and the ILO (1930) PCIJ Rep., Series B, No. 18 The Vienna convention on the Law of Treaties31 adopts a position which incorporates elements from all three schools. More specifically Article 31 states that treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their object and purpose’. The principle of good faith stems from the mutual agreement of the parties to enter the treaty in good faith (pacta sunt servada) 32 and consequently interpretation must be in good faith as well. It may be necessary to interpret in the following circumstances33: When a treaty has been incorporated into UK law by domestic legislation i.e. statue. When a provision of a statue enabling a treaty is obscure or ambiguous the UK courts may interpret them using ‘travaux preparatoires’34 set out in Fothergill v Monarch airlines effectively adopting the interpretation rule set out at the Vienna convention. A statue intended to incorporate wholly or partially provisions of a ratified but unenacted treaty. In this case and when ambiguity arises in the statue the court may refer to the treaty for interpretation, to assert the intended meaning. A statue that concerns a ratified but unenacted treaty but was not intended to incorporate this treaty into domestic law. When ambiguity arises in the statue, the court will again refer to the treaty. This is because the court is based on the assumption that the Parliament would not have intended to legislate contrary to international law. Conclusion
In the UK, incorporation seems to have prevailed regarding International customary law while the doctrine of transformation applies regarding most treaties for constitutional issues. The increasing involvement of International and EU law in domestic legal order has applied pressure which raises political and general discomfort. The added effects of the recent financial crisis of the European Economic Area in the UK, in conjunction with the mentioned discomfort, might generate stronger secessionist movements in the future.
31. Vienna convention on the Law of Treaties 1969 section 3
32. Achmad Madjedi Hasan, Pacta sunt servanda: the principle and its application in petroleum production sharing contract, (Fikahati Aneska, the University of Michigan, 2005) 33. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) page145 34. Catherine Colston, Jonathan Galloway, Modern Intellectual Property Law 3/e, (Ed 3, revised Routledge, 2010) page 8.
1. Lord Bingham, ‘Foreword’ in S Fatima, Using International Law in Domestic Courts (Hart Publishing, Oxford, 2005). 2. Alina Kaczorowska, Public International Law 4/e, (Edition 4, revised, Routledge, 2010) 877 3. Hans Kelsen, Pure theory of law, (Berkeley, CA: University of California Press, 1967). 4. W.Kaufmann, Die Rechtkraft des Internationales Rechtes und das Verhaltnis der Staastsgesetzgebungen und der Staastorgane zu demselben (Stuttgard: F. Enke, 1899). 5. William Blackstone, Commentaries on the Laws of England, (ed 3, illustrated, reprint, Lawbook Exchange Limited, 2003) 1202. 6. Fitzmaurice Malgosia, Olufemi A. Elias, Contemporary issues in the law of treaties, (Eleven International Publishing, 2005) 398 7. Achmad Madjedi Hasan, Pacta sunt servanda: the principle and its application in petroleum production sharing contract, (Fikahati Aneska, the University of Michigan, 2005) 137 8. Catherine Colston, Jonathan Galloway, Modern Intellectual Property Law 3/e, (Ed 3, revised Routledge, 2010) 836 Papers-Journals
1. (1939) Transactions of the Grotius Society 51
1. UK Parliament, ‘Appendix 5: The Ponsonby Principle’, http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23612.htm#note186, accessed 24/04/2013 2. UK Parliament, ‘Judgment - In Re Pinochet’,