International law, Sixth edition
part of the public policy of the UK that the courts should in principle
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International Law MALCOLM N. SHAW
The United Kingdom
45 It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of international law. 46 Various the- ories have been put forward to explain the applicability of international law rules within the jurisdiction. One expression of the positivist–dualist position has been the doctrine of transformation. This is based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law by the use of the appropri- ate constitutional machinery, such as an Act of Parliament. This doctrine grew from the procedure whereby international agreements are rendered operative in municipal law by the device of ratification by the sovereign and the idea has developed from this that any rule of international law must be transformed, or specifically adopted, to be valid within the in- ternal legal order. 42 See e.g. Jones v. Saudi Arabia [2006] UKHL 26; 129 ILR, p. 713. 43 See Al-Jedda v. Secretary of State for Defence [2007] UKHL 58. 44 Note the view expressed in Oppenheim’s International Law, p. 54, that ‘states show con- siderable flexibility in the procedures whereby they give effect within their territories to the rules of international law . . . while the procedures vary, the result that effect is given within states to the requirements of international law is by and large achieved by all states’. 45 See e.g. Morgenstern, ‘Judicial Practice’; H. Lauterpacht, ‘Is International Law a Part of the Law of England?’, 25 Transactions of the Grotius Society, 1939, p. 51; J. E. S. Fawcett, The British Commonwealth in International Law, London, 1963, chapter 2; Oppenheim’s International Law, pp. 39–41, and W. Holdsworth, Essays in Law and History, Oxford, 1946, p. 260. See also J. Collier, ‘Is International Law Really Part of the Law of England?’, 38 ICLQ, 1989, p. 924; Higgins, Problems and Process, chapter 12; R. O’Keefe, ‘Customary International Crimes in English Courts’, 72 BYIL, 2001, p. 293; K. Reece Thomas, ‘The Changing Status of International Law in English Domestic Law’, 53 NILR, 2006, p. 371; S. Fatima, Using International Law in Domestic Courts, Oxford, 2005, and D. Feldman, ‘Monism, Dualism and Constitutional Legitimacy’, 20 Australian YIL, 1999, p. 105. 46 See e.g. Upjohn J in In re Claim by Herbert Wragg & Co. Ltd [1956] Ch. 323, 334, and Lord Cross in Oppenheimer v. Cattermole [1976] AC 249, 277; 72 ILR, p. 446. 140 i n t e r nat i o na l l aw Another approach, known as the doctrine of incorporation, holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure. The best-known exponent of this theory is the eighteenth-century lawyer Blackstone, who declared in his Commentaries that: the law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land. 47 This doctrine refers to customary international law and different rules apply to treaties. However, the previously accepted dichotomy between the reception of custom and treaty if now maintained absolutely would distort the many developments currently taking place. As will be seen, English courts have had to deal with the effect of legal decisions ema- nating from the EU and its Court of Justice and the European Court of Human Rights, 48 as well as the other consequences resulting from mem- bership of the EU and of the Council of Europe; have been concerned with the interpretation of an increasing number of rules of international law incorporated into English law through the ratification of interna- tional treaties (particularly the significant number dealing with terrorist issues) and subsequent domestic legislation that they have required; 49 have sought to tackle conflicts of international legal rules and have dealt with the changing configuration of the doctrine of non-justiciability of issues raising questions as to the executive’s conduct of foreign policy. They have also had to concern themselves with the validity of foreign laws deemed to conflict with international law and the acceptability of evidence ob- tained abroad in circumstances that may have violated international law. 50 English courts take judicial notice of international law, so that formal proof of a proposition does not need to be demonstrated (unlike propo- sitions of foreign law) and this itself has been a key factor in deter- mining the relationship between international law and domestic law. Judges are deemed to know international law. In practice this means that judges and lawyers trained in domestic law have had to grapple with the 47 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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