International law, Sixth edition
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International Law MALCOLM N. SHAW
Industrialisation [1995] 2 WLR 126, 136. See also Minister for Arts Heritage and Environ-
ment v. Peko-Wallsend Ltd (1987) 75 ALR 218, 250–4; 90 ILR, pp. 32, 51–5, where the Australian Federal Court held that a Cabinet decision involving Australia’s international relations in implementing a treaty was not a justiciable matter, and Arab Republic of Syria v. Arab Republic of Egypt 91 ILR, pp. 288, 305–6, where the Supreme Court of Brazil held that the courts of a third state could not exercise jurisdiction in a matter essentially of state succession between two other states even where the property was within the jurisdiction. 293 CND v. Prime Minister of the UK and Others [2002] EWHC 2777 (Admin), paras. 23, 36 and 47. See also R v. Lyons [2002] 3 WLR 1562; 131 ILR, p. 538. 294 CND v. Prime Minister of the UK, para. 47, cited with approval by the Irish High Court in Horgan v. An Taoiseach, judgment of 28 April 2003, as emphasising ‘the strictly circumspect role which the courts adopt when called upon to exercise jurisdiction in relation to the Executive’s conduct of international relations generally’, 132 ILR, pp. 407, 440. 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 185 sovereign states on the plane of international law’. 295 However, the rule is not absolute. 296 The courts are willing to look at the terms of an unin- corporated treaty in specific situations: first, as noted above, in order to ascertain certain facts such as the existence and terms of, and the parties to, a treaty or where the treaty in question is incorporated into a contract or referred to in domestic legislation and is necessary to a particular deci- sion, and secondly, where the national courts have to adjudicate upon the interpretation of a particular international treaty in order to determine private rights and obligations under domestic law. 297 The latter proposi- tion would operate, for example, with regard to extradition and asylum cases where a view has to be taken with regard to the Geneva Convention Relating to the Status of Refugees, 1951 as a result of domestic legisla- tion, the Asylum and Immigration Act 1996. 298 In Republic of Ecuador v. Occidental Exploration and Production Co., the Court of Appeal, while affirming this principle, emphasised that context was always important, so that a treaty intended by its signatories to give rise to rights in favour of private investors capable of enforcement under the treaty in consen- sual arbitration against one or other of its signatory states in domestic proceedings would fall within this exception and thus be justiciable. 299 The exception to non-justiciability laid down in the CND and Occidental cases was reaffirmed in In the Matter of AY Bank Ltd, 300 where it was held that the right to prove in the liquidation of a joint venture bank in the UK (involving the National Bank of Yugoslavia), upon the dissolution of the Federal Republic of Yugoslavia and its National Bank and consequen- tial apportionment among the successor states, arose in domestic law, so 295 [2006] UKHL 16, para. 30; 132 ILR, p. 684. See also R (Islamic Human Rights Commission) v. CAA [2006] EWHC 2465; 132 ILR, p. 707, and R (Gentle) v. Prime Minister [2008] UKHL 20, above, p. 181, note 272. 296 See Lord Oliver in JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418, 500. Lord Steyn in Kuwait Airways Corporation v. Iraqi Airways Co. (Nos. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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