International law, Sixth edition
part of English law, an Act of Parliament is essential. This fundamental
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International Law MALCOLM N. SHAW
part of English law, an Act of Parliament is essential. This fundamental proposition was clearly spelt out by Lord Oliver in the House of Lords de- cision in Maclaine Watson v. Department of Trade and Industry. 95 He noted that: as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. 92 Ibid., p. 154. 93 See e.g. Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 418. See also Rustomjee v. R (1876) 2 QBD 69 and Lonrho Exports v. ECGD [1996] 4 All ER 673; 108 ILR, pp. 596, 611. 94 See R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1994] 2 WLR 115. 95 [1989] 3 All ER 523, 531; 81 ILR, pp. 671, 684. See also Lonrho Exports v. ECGD [1996] 4 All ER 673, 687; 108 ILR, pp. 596, 611. 150 i n t e r nat i o na l l aw Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. 96 It therefore followed that as far as individuals were concerned such treaties were res inter alia acta from which they could not derive rights and by which they could not be deprived of rights or subjected to obligations. 97 Lord Templeman emphasised that ‘Except to the extent that a treaty be- comes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.’ 98 This was reaffirmed by Lord Bingham in A (FC) and Others (FC) v. Secretary of State for the Home Department, noting that ‘a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or ex- presses principles of customary international law’. 99 The interpretation of treaties not incorporated by statute into municipal law, and the decision as to whether they have been complied with, are matters exclusively for the Crown as ‘the court must speak with the same voice as the Execu- tive’. 100 An exception is where reference to a treaty is needed in order to explain the relevant factual background, 101 for example where the terms of a treaty are incorporated into a contract. 102 Where the legislation in question refers expressly to a relevant but unincorporated treaty, it is 96 [1989] 3 All ER 523, 544–5; 81 ILR, p. 701. See also Littrell v. USA (No. 2) [1995] 1 WLR 82. But see R. Y. Jennings, ‘An International Lawyer Takes Stock’, 39 ICLQ, 1990, pp. 513, 523–6. 97 [1989] 3 All ER 523, 544–5; 81 ILR, p. 701. See further as to the non-justiciability of unincorporated treaties, below, p. 183. 98 [1989] 3 All ER 523, 526; 81 ILR, p. 676. See also Ex Parte Brind [1991] 1 AC 696, 747–8; 85 ILR, p. 29, and R v. Lyons [2002] UKHL 44; 131 ILR, p. 538. 99 [2005] UKHL 71, para. 27. Lord Bingham in R v. Asfaw [2008] UKHL 31, para. 29 stated that, ‘While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation.’ 100 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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