IL AND ML PDF

IL AND ML A. The United Kingdom The United Kingdom docs not have a written constitution, but the Parliament enjoys the supremacy in making or changing the law of the United Kingdom. The conclusion and termination of treaties, and the conduct of foreign affairs is the prerogative of the Crown, i.e.,...

IL AND ML A. The United Kingdom The United Kingdom docs not have a written constitution, but the Parliament enjoys the supremacy in making or changing the law of the United Kingdom. The conclusion and termination of treaties, and the conduct of foreign affairs is the prerogative of the Crown, i.e., it is carried out by the government, which is accountable to the Parliament for the conduct of foreign affairs. 1. Customary international law : The practice of British courts regarding the customary international law has undergone an evolution since the eighteenth century when Sir William Blackstone propounded the “Blackstonian” doctrine, generally known as the incorporation doctrine. According to him, the law of nations... is here adopted in its full extent by the common law, and is held to be part of the law of the land”.22 The doctrine was applied by British courts in the eighteenth century and the subsequent decisions clarified the position that the courts would give effect to settled rules of international law as part of English law.24 However, the latter part of the nineteenth century saw a departure from the doctrine of incorporation to the doctrine of transformation. In R v. Keyn (The Franconia's case),25 a German ship collided with a British vessel less than three miles from the English coast, thereby sinking the British vessel with the loss of one life. The German master of the Franconia was charged for manslaughter. The question before the court was whether the English Court had jurisdiction over such an incident occurring within the British territorial waters. In its judgement, the court did not follow the incorporation doctrine and held that English courts had no jurisdiction over crimes committed by foreigners within the maritime belt extending to three miles from the British coast, although such a right existed under customary international law. The rule was not applicable ex proprio vigore, but it was for the Parliament to legislate. This decision of the court was subsequently reversed by the Territorial Waters Jurisdiction Act, passed by the Parliament in 1878. There was a partial return of the incorporation doctrine in the West Rand Gold Mining Co. v. R,26 in which the court observed: It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country... and as such will be acknowledged and applied by our municipal tribunals. But the expression... that the law of nations forms part of the law of England, ought not to be construed so as to include... as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her courts. Once a rule has been generally accepted by the international community, it will be deemed to be part of the British law subject to the qualifications that: 1. Such a rule is not inconsistent with any British statute whether the statute was earlier or later than the customary rule.32 2. If the highest court once determines the scope of such a rule, then it will be binding on all the courts in Britain even though a new rule has emerged in its place (doctrine of precedent or stare-decisis). Apart from these two qualifications to the automatic adoption of customary international law by British courts, the courts also deny the direct application of international law in the matters pertaining to the following: 1. Acts of State, such as declaration of war or cessation of territory, irrespective of the violation of international law. 2. The Crown’s prerogative, such as granting of recognition to States or governments, or diplomatic status or immunity to certain persons, cannot be questioned in courts, which are bound by a certificate or authoritative statement on behalf of the executive, even if they are in contravention of the rules of international law. 2. Treaty practice While it is possible to regard customary international law as part of English law, subject to certain limitations, the position of treaty rules is quite different. The making of a treaty (negotiation, signature and ratification) is the prerogative of the Crown and a treaty duly ratified by the Crown is binding on Britain internationally; but to have internal effect, in the sense of changing the existing law or to be a source of rights or obligations in domestic law, the treaty requires enabling legislation by Parliament. This position on treaties has been clarified by the House of Lords in Maclaine Watson v. Department of Trade: Treaties... are not self-executing. [A] treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter aliosacta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations. On the basis of judicial precedents as to treaty practice, the position can be summed up as follows: I. Treaties do not bind the British courts ipso facto. Legislation is required for creating internal effects. 2. Treaties which (i) affect the private rights of the British subject, or (ii) involve any modification of common law or statute law of England, or (iii) create additional financial burden on the government exchequer for their implementation, or (iv) invest the Crown with additional powers,46 should receive parliamentary approval through an Act of Parliament and, if necessary, to bring legislative changes in the existing law. 3. Treaties, made subject to the approval of Parliament, for their application are usually so approved in the form of a statute. 4. Treaties involving the cession of British territory must be approved by Parliament through a statute. 5. Treaties relating to the belligerent rights of the Crown or informal, administrative agreements, not involving the alteration of municipal law, do not require any legislation. Where a treaty has been legislated, it will prevail over an earlier conflicting statute.47 But where the treaty has not been legislated, it may be referred for the purposes of interpretation of a conflicting statute. Where an Act is enacted by the Parliament in its own language to give effect to a treaty, but the legislation is ambiguous, the treaty may be referred for construing the Act in a manner which, in so far as possible, should comply with the terms of the treaty because the prima facie assumption is that Parliament does not intend to act in breach of its treaty obligations and of international law.