International law, Sixth edition
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International Law MALCOLM N. SHAW
Residences [1943] SCR 208; Reference re Ownership of Offshore Mineral Rights of British
Columbia [1967] SCR 792; 43 ILR, p. 93, and Reference re Newfoundland Continental Shelf [1984] 1 SCR 86; 86 ILR, p. 593. 194 [1937] AC 326; 8 AD, p. 41. 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 167 domestic law, required legislative action. ‘The question’, remarked Lord Atkin, is not how is the obligation formed, that is the function of the executive, but how is the obligation to be performed, and that depends upon the authority of the competent legislature or legislatures. 195 The doctrine that customary international law forms part of the domes- tic law of Canada has been reaffirmed in a number of cases. 196 This has also been accepted in New Zealand 197 and in Australia. 198 In Horgan v. An Taoiseach, it was affirmed that ‘established principles of customary international law may be incorporated into Irish domestic law provid- ing that they are not contrary to the provisions of the Constitution, statute law or common law’. 199 The relationship between treaties and do- mestic law was examined by the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v. Teoh. 200 The Court upheld the traditional doctrine to the effect that the provisions of an international 195 Ibid., pp. 347–8; 8 AD, pp. 43–4. See also Pfizer Inc. v. Canada [1999] 4 CF 441 and R v. Council of Canadians 2003 CanLII 28426, paras. 35–7 (2005), affirmed 2006 CanLII 400222, 217 OAC 316. 196 See e.g. Reference re Exemption of US Forces from Canadian Criminal Law [1943] 4 DLR 11, 41 and Reference re Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences [1943] SCR 208. 197 See e.g. Marine Steel Ltd v. Government of the Marshall Islands [1981] 2 NZLR 1; 64 ILR, p. 539; and Governor of Pitcairn and Associated Islands v. Sutton [1995] 1 NZLR 426; 104 ILR, p. 508. The courts have also referred to a presumption of statutory interpretation that, so far as wording allows, legislation should be read in a way that is consistent with New Zealand’s obligations: see e.g. Rajan v. Minister of Immigration [1996] 3 NZLR 543, 551 and Wellington District Legal Services v. Tangiora [1998] 1 NZLR 129, 137; 115 ILR, pp. 655, 663. See, as to the use of treaties in statutory interpretation, Attorney-General v. Zaoui [2005] NZSC 38, [2006] 1 NZLR 289, (2005) 7 HRNZ 860. See also Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47; 134 ILR, p. 660 with regard to Singapore. 198 See e.g. Potter v. BHP Co. Ltd (1906) 3 CLR 479, 495, 506–7 and 510; Wright v. Cantrell (1943) 44 SR (NSW) 45; Polites v. Commonwealth (1945) 70 CLR 60 and Chow Hung Ching v. R (1948) 77 CLR 449. These cases are unclear as to whether the incorporationist or transformation approaches have been adopted as the appropriate theoretical basis. As to the view that international law is the ‘source’ of domestic law, see Dixon J in Chow Hung Ching and Merkel J in Nulyarimma v. Thompson (1999) 165 ALR 621, 653–5; 120 ILR, p. 353. See also Public International Law: An Australian Perspective (eds. S. Blay, R. Piotrowicz and B. M. Tsamenyi), Oxford, 1997, chapter 5, and H. Burmeister and S. Reye, ‘The Place of Customary International Law in Australian Law: Unfinished Business’, 21 Australian YIL, 2001, p. 39. 199 132 ILR, pp. 407, 442. 200 (1995) 128 ALR 353; 104 ILR, p. 466. See also Blay et al., Public International Law: An Download 7.77 Mb. Do'stlaringiz bilan baham: |
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