International law, Sixth edition
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International Law MALCOLM N. SHAW
Lonrho Exports v. ECGD [1996] 4 All ER 673, 688; 108 ILR, pp. 596, 613. See also GUR
Corporation v. Trust Bank of Africa Ltd [1986] 3 All ER 449, 454, 459 and 466–7; 75 ILR, p. 675, and Sierra Leone Telecommunications v. Barclays Bank [1998] 2 All ER 821, 828; 114 ILR, p. 466. 101 Lord Oliver in Maclaine Watson v. Department of Trade and Industry emphasised that the conclusion of an international treaty is a question of fact, thus a treaty may be referred to as part of the factual background against which a particular issue arises, [1989] 3 All ER 523, 545; 81 ILR, pp. 671, 702. See further below, pp. 183–5. 102 Lonrho Exports v. ECGD [1996] 4 All ER 673, 688; 108 ILR, pp. 596, 613. 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 151 permissible to utilise the latter in order to constrain any discretion pro- vided for in the former. 103 Further, it has been argued that ratification of an international treaty (where no incorporation has taken place) may give rise to legitimate expectations that the executive, in the absence of statutory or executive indications to the contrary, will act in conformity with the treaty. 104 However, treaties relating to the conduct of war, cession of territory and the imposition of charges on the public purse 105 do not need an in- tervening act of legislation before they can be made binding upon the citizens of the country. 106 A similar situation exists also with regard to relatively unimportant administrative agreements which do not require ratification, providing of course they do not purport to alter municipal law. In certain cases, Parliament will give its approval generically in ad- vance for the conclusion of treaties in certain fields within specified limits, subject to the terms negotiated for particular treaties being promulgated by statutory instrument (secondary legislation). 107 Such exceptions occur because it is felt that, having in mind the historical compromises upon which the British constitutional structure is founded, no significant leg- islative powers are being lost by Parliament. In all other cases where the rights and duties of British subjects are affected, an Act of Parliament is necessary to render the provisions of the particular treaty operative within Britain. In conclusion, it may be stated that parliamentary legislation will 103 See e.g. R v. Secretary of State, On the Application of the Channel Tunnel Group 119 ILR, pp. 398, 407–8. 104 See Lord Woolf MR in Ex Parte Ahmed and Patel [1998] INLR 570, 584, relying upon the approach of the High Court of Australia in Minister of Immigration v. Teoh, as to which see below, p. 167. Hobhouse LJ in Ex Parte Ahmed and Patel noted that where the Secretary of State had adopted a specific policy, it was not possible to derive a legitimate expectation from the treaty going beyond the scope of the policy: at 592. Note, as to the special position of human rights treaties as against other multilateral treaties, e.g. Matthew v. Trinidad and Tobago State [2004] UKPC 33; 134 ILR, p. 687. 105 See the evidence presented by the Foreign and Commonwealth Office to the Royal Com- mission on the Reform of the House of Lords, UKMIL, 70 BYIL, 1999, p. 405. 106 See e.g. S. de Smith and R. Brazier, Constitutional and Administrative Law, 6th edn, London, 1989, pp. 140–2, and W. Wade and O. H. Phillips, Constitutional and Adminis- trative Law, 9th edn, London, 1977, pp. 303–6. See also Attorney-General for Canada v. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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