International law, Sixth edition
part of the public policy of England that its
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International Law MALCOLM N. SHAW
Papua New Guinea that ‘it is part of the public policy of England that its
courts should give effect to clearly established rules of international law’. 84 The doctrine that customary international law formed part of the law of England was discussed by the House of Lords in R v. Jones, 85 where the issue focused upon whether the customary international law rule prohibiting aggression had automatically entered into English criminal law. Lord Bingham, while noting that the general principle was not at issue 76 Ibid. 77 [1988] 3 WLR 1118; 80 ILR, p. 135. 78 [1989] 3 All ER 523; 81 ILR, p. 671. 79 [1989] 3 All ER 554; 81 ILR, p. 715. 80 [2000] 1 AC 61, 98 and see also at 90; 119 ILR, pp. 50, 87. 81 See Ex Parte Pinochet (No. 1) [2000] 1 AC 61, 77; 119 ILR, pp. 50, 65. 82 [2000] 1 AC 147, 276; 119 ILR, pp. 135, 230. See also Regina (European Roma Rights Centre) v. Immigration Officer at Prague Airport and Another [2004] UKHL 55, paras. 22 ff. (per Lord Bingham); 131 ILR, pp. 652, 671 ff. 83 2001 SLT 507, 512. See also S. Neff, ‘International Law and Nuclear Weapons in Scottish Courts’, 51 ICLQ, 2002, p. 171. 84 117 ILR, pp. 552, 560. 85 [2006] UKHL 16; 132 ILR, p. 668. i n t e r nat i o na l l aw a n d m u n i c i pa l l aw 147 between the parties, commented that he ‘would for my part hesitate, at any rate without much fuller argument, to accept this proposition in quite the unqualified terms in which it has often been stated’. Preference was expressed for the view maintained by Brierly that international law was not a part, but was rather one of the sources, of English law. 86 More specifically, the House of Lords unanimously accepted that the incorporation doctrine did not apply to the customary international law offence of aggression. While it was accepted that a crime recognised in customary international law ‘may’ be assimilated into domestic criminal law without statutory provision, this was not automatic. 87 The English courts no longer had the power to create new criminal offences, which could only now be done by statute, and in practice when domestic effect was sought for customary international crimes this was achieved through legislation. 88 Further, a charge of aggression would involve a determina- tion not only of the guilt of the accused, but also of the state itself and possibly of other states, should the state go to war with allies and this raised constitutional issues as to non-justiciability. 89 Accordingly, a degree of caution may therefore now be necessary with regard to the traditionally and baldly expressed proposition that cus- tomary international law is part of English law. This will be subject not only, as in the past, to the rule that common law (including where in- corporating an international customary rule) gives way to statute, but also to considerations of a constitutional nature. Courts will be obliged to 86 Ibid., para. 11; 132 ILR, p. 675, and see J. Brierly, ‘International Law in England’ 51 LQR, 1935, 24, 31. 87 R v. Jones, para. 23; 132 ILR, p. 680, per Lord Bingham, who noted that ‘customary international law is applicable in the English courts only where the constitution permits’, quoting O’Keefe, ‘Customary International Crimes in English Courts’, p. 335, and that ‘international law could not create a crime triable directly, without the intervention of Parliament, in an English court’, quoting Sir Franklin Berman, ‘Jurisdiction: The State’ in Download 7.77 Mb. Do'stlaringiz bilan baham: |
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