international law is a part of municipal law

8/10/2019 international law is a part of municipal law

1/13

ritish Institute of International and Comparative Law

Is International Law Really Part of the Law of England?Author(s): J. G. CollierSource: The International and Comparative Law Quarterly, Vol. 38, No. 4 (Oct., 1989), pp. 924-935Published by: Cambridge University Presson behalf of the British Institute of International and

Comparative LawStable URL: http://www.jstor.org/stable/759922.

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2/13

924 International

and

Comparative

Law

Quarterly

[VOL.

38

a

payment

of

a

dividend

intra vires from

accumulated

profits

of

substantially

all

the

assets

of

the

company,

leaving

the

company

insolvent and

creditors

unpaid,

is a

fraud

upon

creditors.

The relevance of

classifying

the

behaviour as a fraud on

creditors is that

even

unanimous

consent

of

all shareholders will

not bind a

company

to

a

transaction

so

classified.57 Such a conclusion

thus

prevents

company

controllers

charged

with theft from a

company

under their control from

raising

the issue of

corpor-

ate

consent. Such a conclusion is both

equitable

and

desirable.

Furthermore,

it

is

in

keeping

with a

growing body

of case

law

in

Australasia

suggesting

that in

circumstances

of

insolvency

or

impending insolvency

directors

possess

an obli-

gation

to the

company

to

have

regard

to the

interests of

creditors,

which

the

unanimous assent of all shareholders

cannot

prevent.58

F.

Conclusion

The

reasoning

found both

in

Roffel

and

Craig

leads to the conclusion

that a

person

whom

common sense would

regard

as a thief

is not a thief

in

law .59

Such

a conclusion is untenable and

may

be overcome

by

re-examining

the

question

whether it is correct

to

utilise the doctrine of

identification to

circumstances

where offences are committed

against

a

company.

GORDON

WILLIAMS

57. Rolled Steel

Products,

supra

n.32,

at

p.296.

58.

Walker

v. Wimborne

(1976)

137 C.L.R.

1;

Nicholson v.

Permakraft

(NZ)

Ltd

(In

liq.)

[1985]

1 N.Z.L.R.

242;

Kinsela

v. Russell Kinsela

Pty

Ltd

(In

liq.) (1986)

4

N.S.W.L.R.

722;

Grove

v.

Flavel

(1986)

S.A.S.R.

410;

see also

Dabner,

Directors

Duties-The Schizoid

Company

(1988)

6

Comp.

and

Sec.

L.J. 105.

59. Roffel,supran.2, atp.343 (perCrockettJ). Sincethe text of this wasprepared, he

English

Court of

Appeal

in

R

v.

Philippou,

The Times Law

Report,

6

April

1989,

has reaf-

firmed

the conclusion

reached

in

Attorney-General's

Reference

that a

controlling

share-

holder-director

can steal

from the

company.

In

Philippou

counsel for the

delinquent

directors

argued

that

the

reasoning

of

the

majority

in

Roffel supported

the

contention

that

no

appropriation

ould exist in

such circumstances.

his contentionwas

rejectedby

the

Court

of

Appeal

who

were

of the

opinion

that

for the

reasons

stated

by

Kerr

LJ

in

Attorney-General's

Reference,

there existed

no

consent

by

the

company.

IS INTERNATIONAL

LAW REALLY

PART

OF

THE

LAW

OF ENGLAND?

A.

Introduction

Teachers

of international law

in

universities and

colleges

throughout

the land

are all

used to

marking essays

on the second

topic

of

the academic

year.

This

reads: What

theories exist to

explain

the

relationship

between

international

law and

municipal

law? Is international law

part

of

the law of

England? -or

words

to that effect.

The usual answer

goes something

like

this:

There are

two main

theories,

monism

and

dualism.

Monists,

such as

Triepel,

Kel-

sen and

Lauterpacht,

nsist that

all law

is as one

and that

international aw and

municipal

aw are

part

of a

single system.

The monistdoctrine

s connectedwith

naturalist heories

and with the view

that t

is

men and

women,

not

States,

who

are

really

the

subjects

of

international

aw in the sense

of

having

rights

and

owing

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/13

OCTOBER

989]

International

Law as

English

Law

925

duties

derived

therefrom. It is this doctrine which

Lord

Denning,

in Trendtex Trad-

ing

Corporation

v.

Central Bank

of Nigeria,'

called

incorporation .

The

opposing

view

is held

by

dualists,

such

as Anzilotti.

They

maintain that inter-

national law and municipal law are entirely separate systems and deal with different

subject

matters.

Dualism is associated

with

positivist

theories and

with

the

notion

that

States,

not

individuals,

are the

primary subjects

of international law. Rules

of

international

law

enter

into

municipal

law

only

if

the

latter causes

them

to do

so.

In

the case

already

mentioned Lord

Denning

called this doctrine

transformation .

The

English

judges

seem

traditionally

to have leaned towards the monist

view;

for

example,

in

eighteenth-century

cases about

diplomatic immunity they

averred

that the law

of

nations

is

part

of the law

of

England.

Blackstone

expressed

the same

opinion

in his Commentaries

and

the

idea was

adopted

in

early

nineteenth-century

judgments.

But in

1876,

in R. v.

Keyn (The

Franconia),2

perhaps

there was

a

sea-

change.

The German

captain

of

a German

ship

which

had

collided with

an

English

vessel less than three miles from Dover Beach was accused of manslaughter. The

Court

for Crown Cases

Reserved,

by

seven

to six

(Archibald

J had died after

argu-

ment was

heard but before

judgment

was

given),

held that the

Central Criminal

Court

had

no

jurisdiction

to

try

the

captain.

Cockburn

CJ had a

great

deal to

say

about international

law and

English

law,

but

although

almost

every

judge

said

something,

some

said

one

thing,

some said another-and the case is

perhaps

not

really

very

conclusive one

way

or the other. Then in

1905,

in West Rand Central

Gold

Mining

Company

v. The

King,3

Lord

Alverstone CJ

uttered

a

weighty

and

lengthy pronouncement

which

might

be

regarded

as

dualistic,

and

in

Chung

Chi

Cheung

v.

The

King,4

a 1939

case

concerning

a

murder committed

by

a

Chinese

member of the crew

of a Chinese

public

ship

when on board that

ship

when it was in

Hong Kong waters, Lord Atkin fired off another broadside which could be taken

the same

way.

There matters seem

to have

rested until

in 1974 Lord

Denning

MR

gave

his

imprimatur

to

the dualist

(transformation)

doctrine in

Thakrar v.

Secretary of

State,5

but

in Trendtex

Trading

Corporation

v.

Central

Bank

of

Nigeria

three

years

later,

the same learned

judge

turned turtle and said he was now an

adherent of

the

doctrine of monism

(incorporation),

and

thus achieved the result he wanted

the liti-

gation

to have.

So

it

appears

that

monism

is now in fashion as

the doctrine followed

by

the

Eng-

lish

courts.

However,

for

completeness's

sake,

one should add that all

this is

beside the

point

and set at

naught

where British statutes

and

treaty

obligations

are in

point.

Whether or

not

international

law

is

part

of

English (or Scottish)

law,

it

is

obvious

that

if Parliament has

legislated

and the words of

the Act

are

clear

(or

the

process

of

interpretation

makes them

clear),

then

it must be

applied by

the

courts,

as the

Scots

court

held in

Mortensen v.

Peters,6

even

though

its

application

is

a

contraven-

tion

of international law.

Moreover,

if

the international

legal obligation

is con-

tained in a

treaty,

then,

because a

treaty

is concluded

by

the

Crown in the

exercise

of

the

prerogative

and

because the

Crown

cannot

by

the

prerogative

alter

the law of

the

land,

the

obligation

does

not form

part

of

the law of

England

and

may

not be

enforced

by

the

courts unless

it

has

been

incorporated

into

English

law

by

means

of

legislation.

(See

The Parlement

Belge,7

per

Sir

Robert

Phillimore.)

1.

[1977]

OQ.B.

29

(CA).

2.

(1876)

2

Exch. D. 63.

3.

[1905]

2

K.B.

391.

4.

[1939]

A.C.

160

(PC).

5.

[1974]

Q.B.

684

(CA).

6.

(1906)

8 F.

93.

7.

(1879)

4

P.D.

129.



4/13

926

International and

Comparative

Law

Quarterly

[VOL.

38

Thus,

in

conclusion,

we

may say

that internationalaw is

part

of the law of

Eng-

land

except

when t isn't.

This is a brief summary of the usual undergraduate essay. It is now proposed to

examine

the matter

just

a little more

closely.

We are concerned

only

with

cus-

tomary

international

law and

English

common law. The

two

propositions

about

statutes

and treaties

contained

in the

penultimate

paragraph

of the

essay

are,

from the

point

of view

of an

English

constitutional

lawyer,

axiomatic. When it is

said

that

international

law is

part

of the law of

England,

what

exactly

does this

mean?

How is

such a

proposition

proved

or

disproved?

The assertion is not

par-

ticularly

meaningful

or useful and

in the

English

case

law,

there is no real evi-

dence

for

or

against

it. Let us retrace

our

steps.

B. The

Early

Cases

In

the

eighteenth-century

cases,

which were concerned

with the

application

of

the

Diplomatic

Privileges

Act

1708

(the

Act was used

by

debtors-seeking

to

evade

their

creditors-who

had

managed

to obtain

employment

such as

chief

cook

at

the Bavarian

Legation

or as chorister

in the

chapel

of

the

Portuguese

Minister),

the view

that

international law

is

part

of the law

of

England

was

indeed often

reiterated.

In

Triquet

v.

Bath,

a case

in

which the

defendant,

a

domestic

servant

of the Bavarian

Minister

in

London,

successfully

claimed

dip-

lomatic

immunity,

Lord Mansfield said

that

diplomatic

privilege depended

on

the law of nations and that the 1708 Act was declaratory of it. He continued by

saying

that

The

Act was

not occasioned

by any

doubt whether

the

law

of

nations,

particularly

the

part

relative

to

public

ministers,

was

not

part

of the law

of

England;

and

the

infraction, criminal;

nor intended to

vary

an iota

from it.

He recalled

Lord Talbot

LC

in Barbuit's

case9

declaring

a clear

opinion,

That

the

law

of

nations,

in

its

fullest

extent,

was

part

of the law

of

England ,

and

that

Lord Hardwicke

had

declared

his

opinion

to the same effect.

Lord Mansfield

repeated

his earlier

observations

in

Heathfield

v.

Chilton,'1

and

the

gist

of them

was

subsequently

repeated

by

other

judges.

In the

nineteenth

century,

similar

views

were

expressed.

For

example,

in De

Wutz

v.

Hendricks11

he

court refused

to

enforce a contract

of loan

entered into

in

England

to assist

a rebellion

in the Ottoman

Dominions.

Best CJ said:

It occurred

o me

at the trial

hat it was

contrary

o the

law

of

nations

which

n

all

cases

of international

aw is

adopted

into the

municipal

ode of

every

civilised

country),

or

persons

n

England

o enter

nto

engagements

o raise

money

to

sup-

port

the

subjects

of a

government

n

amity

with our

own,

in hostilities

against

heir

government.

8.

(1764)

3 Burr.

478.

Lord

Mansfield's

udgment

ontains

an account

of the

passing

of

the Act.

9. Buvot v. Barbuit (1737) Cas. t. Talbot 281.

10.

(1767)

4

Burr.

2015. See

also

Viveash

v.

Becker

(1814)

3 M. &

S.

284.

11.

(1824)

2

Bing.

314. See

also

Emperor

of

Austria

v.

Day

& Kossuth

(1861)

2

Giff.

628,

678-679

(affirmed

(1861)

3 De G.

F. & J.

217),

which involved

the

question

whether

a

foreign

sovereign

could

be

granted

an

injunction

o restrain

he

printing

of

notes

for

foreign

revolutionaries.

The

writer

confesses

that he

has never

been

able to understand

why

this

case

caused

the

juristic

difficulties

which it

seems to have

done,

or

why

inter-

national

law entered

into

it.

This

is

why

it

is

not

discussed

in the text.



5/13

OCTOBER

1989]

International Law as

English

Law

927

A more obscure

remark is

that of Cockburn

CJ

in

The

Charkieh,12

a

case con-

cerning

sovereign

immunity:

The

questions

raised relate to international

law,

which is recognised by

the

municipal

law of

this

country.

The

same

judge

delivered

a

leading

judgment

in the famous case of R. v.

Keyn

(The

Franconia)

in

1876.13

It

will

be recalled that

a

German

ship,

the

Franconia,

collided

with

an

English

ship,

the

Strathclyde,

in the

English

Channel within

three

miles of the

English

coast. The

Strathclyde

sank. The

captain

of the

Fran-

conia

was tried for the

manslaughter

of Jessie Dorcas

Young,

a

passenger

on

the

Strathclyde.

It was

objected

that the court had

no

jurisdiction

to

try

Captain

Keyn.

The

question

before the Court for Crown Cases Reserved was

whether the

Central Criminal Court did have

jurisdiction.

The case was

argued

before six

judges who were equally divided and again before 14 judges, one of whom,

Archibald

J,

died between

argument

and

judgment.

A

majority

of seven of

the

remaining

13

judges

(Cockburn

CJ,

with

whom

Pollock B and

Field J

concurred,

Kelly

CB,

Bramwell

JA,

Lush J

and

Sir

R.

Phillimore)

held that the

court had

no

jurisdiction.

The

six

judges

who formed the

minority (Lord

Coleridge

CJ,

Brett and

Amphlett

JJA, Grove,

Denman and

Lindley

JJ)

held

that the

court

had

jurisdiction.

To

ascertain the

reasons,

it

suffices

to

quote

the

headnote,

which recites that the whole

of

the

majority

of the

court held that:

...

prior

to 28 Hen.

8, c.15,

the admiral

had

no

jurisdiction

o

try

offences

by

foreigners

n

board

oreign

hips,

whether

within

or

without he

limit

of

three

miles

fromthe shoreof

England;

hatthatandthe

subsequent

tatutes

only

transferredo

the

common

aw courts

and

the CentralCriminal

Courtthe

jurisdiction

ormerly

possessed by

the

admiral;

and

that,

therefore,

n

the

absence

of

statutory

nact-

ment,

the

Central

CriminalCourt

had no

power

to

try

such

an offence.

This,

it

will be

observed,

is

a

question

of

English

law

only.

Kelly

CB and Sir R. Phillimore also held

that:

...

by

the

principles

of

international

aw,

the

power

of a

nation over

the

sea

within

three miles

of

its coasts s

only

for

certain imited

purposes;

nd

thatParlia-

ment could

not,

consistently

with

those

principles,apply

English

aw within

hose

limits.

The

six

judges

in

the

minority

dissented

.

.

on the

ground

hat

the

sea within hreemilesof

the

coast

of

England

s

part

of

the

territory

of

England;

hat the

English

criminal

aw

extends over

those

limits;

and

the

admiral

ormerly

had,

and

the Central

CriminalCourtnow

has,

jurisdiction

to

try

offencesthere committed

although

on

board

oreign hips.

This has

everything

to do with

English

law also.

It

should be added that Lord

Coleridge

CJ

and Denman

J were

also

floating

islanders since

they opined

that

because

the

collision

caused the

death of

a

pas-

senger on board an English ship, the Central Criminal Court had jurisdiction for

that

reason.

So far as the

headnote

goes,

therefore,

almost

everything

is

couched in

terms

of

English

law.

There

was a

fair

amount of discussion of

international

law,

but

12.

(1873)

8

Q.B.

197.

13.

Supra

n.2.



6/13

928

International

and

Comparative

Law

Quarterly

[VOL.

38

the decision

of

neither

the

majority

nor

the

minority appears

to

have

turned

on it.

It has often been contended that Keyn demonstrates a judicial shift away from

the doctrine

of

incorporation

to

that

of

transformation,

since

it

suggests

that

a

rule

of

international law can become a

rule

of

English

law

only

if

it is

trans-

formed into

the latter

by

statute

or

judicial

decision. It is

far from

certain

that

this is

really

so,

since

in

the

opinion

of

some

members

of

the

majority,

inter-

national law was at that time at the least

unclear

as

to

whether the

coastal State

did

possess jurisdiction

over

foreigners

for

offences

committed within

the

three-

mile

limit of

territorial

waters.

In

this

they may

have been

correct,

for

although

Parliament then asserted such

jurisdiction

and,

doing

what

Kelly

CB and

Sir R.

Phillimore denied that

it

could do

consistently

with

international

law,

reversed

Keyn by the Territorial Waters Jurisdiction Act 1878, the extent of the coastal

State's

sovereignty

over its

territorial

sea

seems

to

have been

uncertain until

the

early

twentieth

century.14

In

short,

it

is

doubtful whether

very

much can be

gleaned

about international

law and

English

law

from R. v.

Keyn.

C.

The West Rand

Case

The

next case which

is

commonly

referred to

in

discussion of

this

topic

and

which is often

said to

support

the doctrine

of

transformation is

West

Rand Cen-

tral Gold Mining Co. Ltd v. The

King,15

in 1905. However, once more there is

little

in

this case

which sheds much

light

on

the

matter.

West Rand

brought

a

petition

of

right against

the Crown

alleging

that before

the

outbreak

of war

between

the

South African

Republic

and

Great

Britain,

some

gold belonging

to the

company

has been taken

by

officials

acting

on

behalf

of

the

Republic

and

that the

government

thereof was liable

by

the

Republic's

laws

to return the

gold

or

its

value to the

company.

It was further

alleged

that

by

reason of the

conquest

and annexation

of the territories of

the

Republic

by

Queen

Victoria

on

1

September

1900,

the

obligation

of

the

government

of

the

Republic

towards

the

company

in

respect

of the

gold

was now

binding

on the

King.

The

King's

Bench

Division held that the

petition

disclosed no

right

on

the

part

of the

company

which

could be enforced

in

any municipal

court

against

the

Crown.

There

were several reasons

for this.

First,

a

petition

of

right

lay only

for contractual

claims,16

and the

petition

did

not and

could not disclose

that there was

any

contract between the

suppliants

and the

government

of the

Republic.

The

simple

reason

for

this was that there

wasn't

one.

For

all

that

appears

in

the

petition

the

seizure

might

have been an

act

of lawless

violence ,

said

the court.

That was

quite

enough

to

dispose

of the

whole business.

14.

O'Connell,

The

Juridical

Nature

of

the Territorial Sea

(1971)

45 B.Y.I.L.

303-383 and

see

now Geneva

Convention

on

the Territorial Sea

and the

Contiguous

Zone,

1958,

Art.1(1);

U.N.

Convention

on the Law

of the

Sea, 1982,

Art.2(1).

15.

[1905]

2

K.B.

391.

16. The

need

for

a

petition

of

right

to enforce such claims

was abolished

by

the

Crown

Proceedings

Act

1947,

which enabled

them

to be enforced

by

an

ordinary

action.



7/13

OCTOBER

989]

International

Law as

English

Law 929

Second,

any

obligation

owed

by

the Crown towards

the

company

could

arise

only

because of the

conquest

and

annexation

of the

Republic by

the Crown.

But

this was an act of State and by English law no alleged right against the Crown

which

is based

on an act

of

State

can be

enforced in an

English

court: see

Rus-

tomjee

v.

The

Queen.17

Third,

the

court held

that there was

no rule

of international law

that a con-

quering

State

is liable

for

the

obligations

of

the

conquered

State.

As a matter

of

fact,

the

court

did not see the need to

discuss international law

at

all,

but talked

about it because the

parties

wished it to

be debated. After

all,

such

luminaries as

Lord Robert Cecil and Sir Robert

Finlay

were

among

the

counsel

engaged

in the case. It was

argued

for

the

company

that

international

law is

part

of the law

of

England.

The

Attorney-General,

Sir

R.

Finlay (later

a

judge of the Permanent Court of International Justice) 8 argued that the cases

cited

by

the

Crown

establish

beyond

all

doubt

that international law is not

part

of the law

of

England .

In

a

much

quoted

passage,

Lord

Alverstone

CJ said:

It is

quite

true that

whateverhas

received he commonconsentof

civilisednations

musthave

received he consent

of

our

country,

and that to which

we have assented

along

with other nations

n

general

may

properly

be

called nternational

aw,

and

as

such will

be

acknowledged

nd

applied

by

our

municipal

ribunalswhen

legitimate

occasion

arises

for those tribunals

o

decide

questions

o which

doctrines

of inter-

national aw

may

be relevant.

But

any

doctrineso invoked

must

be one

really

accepted

as

binding

between

nations,

andthe internationalaw

sought

o

be

applied

must, like anythingelse, be provedby satisfactory vidence, whichmust shew

either

that the

particular

ropositionput

forwardhas been

recognised

and acted

upon

by

our

own

country,

or that t is of

such a

nature,

and

has been so

widely

and

generally

accepted,

that it can

hardly

be

supposed

hat

any

civilised

State

would

repudiate

it . . . Barbuit's

case,

Triquet

v. Bath and

Heathfield

v.

Chilton

are cases

in which

he

Courts

of law have

recognised

nd have

given

effect

to

the

privilege

of

ambassadors

s established

by

international

aw.

But the

expressions

sed

by

Lord

Mansfield

when

dealing

with

the

particular

nd

recognised

ule

of

internationalaw

on this

subject,

that the law

of

nations orms

part

of

the

law

of

England,

ought

not

to

be construed

so

as

to include

as

part

of

the law

of

Englandopinions

of text-

writers

upon

a

question

as to which here

s

no

evidence hat

GreatBritainhas ever

assented,

and

a

fortiori f

they

are

contrary

o the

principles

f her

laws as declared

by

her Courts.

The

cases

of

Wolff

v.

Oxholm '

and Rex v.

Keyn

are

only

illus-

trations

of the same

rule-namely,

that

questions

of international

aw

may

arise,

and

may

have to be considered n connectionwith the administration

f

municipal

law.

In the

crucial

penultimate

sentence of this

extract,

Lord Alverstone

CJ

appears

to be

speaking

in

very

dualistic

terms. But it is

apparent

that all that he

was

really

talking

about is the

proof

of

the

existence of a

particular

rule of cus-

tomary

international

law to the satisfaction of an

English

court.

It must

be

shown either that

the

proposition

which is

put

forward as such a

rule has

been so

widely and generally accepted as such that it can hardly be supposed that any

civilised

country (such

as the United

Kingdom)

would

repudiate

it,

or

if

this

can-

17.

(1876)

1

Q.B.D.

487;

2

Q.B.D.

69.

18.

In which

capacity

he said that

international

aw,

wherever

applicable,

s con-

sideredas

part

of the law of

England

andour

judges

must

apply

t

accordingly

The

Lotus

case P.C.I.J.

Ser. A. no.10

(1927)).

19.

(1817)

6

M.

&

S. 92.



8/13

930

Internationaland

Comparative

Law

Quarterly

[VOL.

38

not be

shown,

that

it

has been

recognised

and acted

upon

by

the

United

King-

dom.

If a

proposed

rule has been

repudiated by

the

United

Kingdom

one would

hardly expect

that

an

English

court,

especially

one

presided

over

by

the Lord

Chief Justice

of

England,

would be

willing

to

accept

that it is a rule

of inter-

national law.

At the time the West Rand case

arose,

the British

government

was

advised

and

strenuously argued

that the

proposed

rule to the

effect that a con-

quering

State

was liable

for the non-contractual

obligations

of

the

conquered

State

was not a rule of

international law.20

In

this it was

ultimately

vindicated

by

an award

of

an

international

arbitral

tribunal.21

Two

other

comments

may

be in order.

First,

even

supposing

that

the

court

erred

in

denying

that

the

proposition

was a rule of

international

law,

its error

would not show that the court was unwilling to apply a rule of international law

as

part

of

English

law.

It

would

show

only

that

it

had

got

international law

wrong.

But,

second,

the

knock-me-down

argument

is

surely

this:

in

so

far

as the com-

pany

was

complaining

of a breach

by

the Crown of

international

law,

the Crown

had a clear answer.

The

company

was

registered

in

England

and so had

British

national

status. It is

elementary

that a British

subject

or

citizen

cannot,

in

general,

complain

of a breach

of

customary

international law

by

the Crown in a

British

or

any

other

municipal

court since a State

cannot

commit a

breach

of

international

law

upon

one of its own nationals.

West Rand has really nothing whatever to do with international law and so

nothing

to do

with the

present

discussion.

D.

From

West Rand

to

the 1970s

Cases

After

1905,

a few

stray

dicta

can be found.

For

example,

in

Re

Ferdinand,

ex

Tsar

of Bulgaria22

Warrington

LJ

said

that the

right

of

confiscating enemy prop-

erty

could be defeated

only by

some rule

or

usage

. . .

accepted

as

binding

by

civilised

states

generally

and

by

our

own

government

in

particular ,

words

which are reminiscent

of those

employed

by

Lord

Alverstone CJ.

Otherwise,

this case does not advance matters much. Two later dicta, according to the late

Sir

Hersch

Lauterpacht,23

show some

hesitancy

in

accepting

the doctrine of

incorporation.

In

The

Cristina,24

which concerned

sovereign immunity,

Lord

Macmillan

quoted

Lord Dunedin

in Mortensen v.

Peters25

and mentioned the

need for

adoption

in our

municipal

law of a doctrine of

public

international

law .

In

Chung

Chi

Cheung

v.

The

King26

which,

as we have

seen,

concerned

jurisdiction

to

try

a member

of

the

crew of a

foreign public ship

who had mur-

dered the

captain

when the

ship

was

in

Hong

Kong

territorial

waters,

Lord

Atkin said:

20.

See

Report

of the Transvaal

Concessions

Committee,

Cd.623

1901).

21. Robert

E.

Brown

Case

(1923)

6

R.I.A.A.

120.

22.

[1921]

1

Ch.

107,

137.

23.

(1939)

25 Trans.

Grot.

Soc.

51-89.

24.

[1938]

A.C. 485

(HL).

25.

(1906)

8 F.

93.

26.

[1939]

A.C. 160

(PC).



9/13

OCTOBER

989]

International

Law as

English

Law

931

It must

always

be remembered

hat,

so far at

any

rate as the courtsof this

country

are

concerned,

nternational

aw has no

validity

ave

in so far as its

principles

re

accepted

and

adopted

by

our

own domestic aw.

There is no

external

power

that

imposesits rulesuponour own code of substantiveaw or procedure.The courts

acknowledge

he existence of a

body

of rules

which nations

adopt

among

them-

selves.

On

any

judicial

ssue

they

seek to ascertainwhat the relevant

rule

is, and,

having

ound

t,

they

will treat t as

incorporated

nto the domestic

aw,

so

far

as

it

is

not inconsistent

with

the rules enacted

by

statutes

or

finally

declared

by

their

tri-

bunals.

This

passage

seems

to combine

both the doctrines

of

incorporation

and

of

transformation.

It

is not

very

clear

which of these Lord Atkin

really

advocated.

E. The

1970s

Cases

In two cases

in the 1970s

Lord

Denning

expressed

both the

two

opposed

views.

In Thakrar

v.

Secretary of

State

for

the Home

Office,27

in

1974, Thakrar,

who

was born

in

Uganda

of

Indian

parents,

sought

admission to the

United

King-

dom. This

was refused

by

the

immigration

authorities

acting

under the

Immi-

gration

Act 1971.

He tried

to establish his

right

of admission under international

law

and

so under

United

Kingdom

law as a British

protected person.

The

Court of

Appeal

held

that he

had

lost his British status

when

he

regis-

tered

as a

Ugandan

national.

Lord

Denning

MR said of

Thakrar's

appeal

to

international

law that

rules of international

law

only

become

part

of

our law in

so far as they are accepted and adopted by us and that a rule of international

law

is

only

a

rule between two

states.

It

is not a rule between

an individual and

a

state.

(One may respectfully

interject,

Quite

right .)

He also

denied that

the

proposed

rule that

a

State

is

bound to

accept

into its

territory

a

large

number of

its

nationals

who have been

expelled

from another

State is

a

rule of

international

law.

The

judgment

is

very

strong

support

indeed for the

theory

of

transforma-

tion.

It is

true, indeed,

that

Thakrar's own

argument

that

he had

British status

entailed

that he could

not

rely

on international law. But the

case adds

little

to

the

present

discussion

for the reason that the

plain

answer to

Thakrar's

plea

was,

as Orr

LJ

observed,

that

a rule of international

law

cannot be

treated as incor-

porated

when

this

would be inconsistent

with a

statute. The decision

has little to

do with the

relationship

of

international law and the

common law.

However,

from

the

very

dualistic

position

he took in

Thakrar,

Lord

Denning

MR

indulged

in

a

complete

volte-face

in

Trendtex

Trading

Corporation

v.

Cen-

tral Bank

of

Nigeria28

and,

together

with

Shaw

LJ,

adopted

the doctrine of

incorporation.

The Central

Bank of

Nigeria

was sued on certain

commercial

letters of credit

it had

issued

in

favour of

Trendtex

which

would effect

payment

to Trendtex for cement

it had sold to the

Nigerian government.

The

government

had instructed the Bank not to pay against the letters of credit. When it was

sued,

the

Bank

claimed to

represent

the

Nigerian government

and so to

be able

to claim

immunity

from the

jurisdiction

of

the

English

courts.

Until this

case,

the Court of

Appeal

had held

in

several

decisions,

the most

27.

[1974] Q.B.

684

(CA).

28.

[1977]

Q.B.

529

(CA).



10/13

932

International and

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[VOL.

38

recent

being Thai-Europe Tapioca

Service Ltd v.

Government

of

Pakistan29

(in

which

case

Lord

Denning

MR

had been a member of the

Court),

that a

foreign

State or its government enjoys sovereign immunity in respect of proceedings

against

itself or its

property,

whether the action

against

it

arose out of

a

govern-

mental or a

commercial

activity

or

transaction.

In

The

Philippine

Admiral3N he

Judicial

Committee

of the

Privy

Council,

whose advice

was

given

by

Lord

Cross

of

Chelsea,

had

made a rather

illogical

distinction and had

held that no

immunity

existed

in

respect

of

commercial activities if the action

was in

rem,

but

said that the Court

of

Appeal

in

England

was bound

by

its

own

previous

decisions

to hold that

immunity

did exist

in

respect

of such

activities

if

the

action

was

in

personam

(like

that

in

Trendtex).

In Trendtex

the Court

of

Appeal

held,

unanimously,

but with not

too much

certainty, that the Central Bank was not an organ of the Nigerian State, as it

were,

and so did

not share

Nigeria's

sovereign

immunity anyway.

But Lord Den-

ning,

who

took

up

with obvious

glee

the

challenge

thrown

down

by

Lord

Cross,

and

Shaw

LJ

(Stephenson

LJ

dissented on this

point)

went on

expressly

to hold

that

even had the action been

against

the

Nigerian

government

itself,

that

government

would not have

been

entitled

to

rely

on the

plea

of

immunity,

since

the transaction

out of

which

the action arose was

commercial

and

not

govern-

mental

in nature.

To

achieve

this

result,

their

Lordships

had to avoid or

evade the

previous

decisions

of

the

Court of

Appeal

itself,

to

which

Lord Cross had

alluded

in

The

Philippine

Admiral. It will also be recalled that in

Chung

Chi

Cheung

Lord

Atkin had said

that the courts

will

treat a rule of

international

law as

incorpor-

ated into

English

law so far as

it

is

not inconsistent

with the rules

enacted

by

statutes or

finally

declared

by

their tribunals

(emphasis added).

In one

sense,

the

question

whether

immunity

is

available

in

respect

of

actions

arising

out of commercial transactions had

not

been

finally

declared

by

the

Eng-

lish

tribunals

since the House

of

Lords had

never

answered it.

In

Rahimtoola v.

Nizam

of Hyderabad31

in

1958,

in the

House

of

Lords,

Lord

Denning

himself

had said

that

it

was

not

available

in

such cases but this was

completely

obiter and

the rest of their Lordships had distanced themselves

from

Lord Denning since

the

point

had not been

argued

and the House did not have the benefit of the

views of

the Court

of

Appeal upon

it.

They

refused to

say anything

more about

the

matter.

But because

of

the doctrine

of stare decisis

the

law

had been

finally

declared as

far as the

Court of

Appeal

was concerned.

The

way

out of the

predicament

was for Lord

Denning

MR to

produce

a

magic argument.

International

law

is,

after

all,

incorporated

into

and is

part

of

English

law.

International

law knows no

doctrine

of

precedent.

So

if

the rule

of international

law has

changed

from the rule of absolute

immunity

to that of

immunity

in

respect

of

governmental

transactions

only,

then

English

law auto-

matically changes with it. As he said:32

...

Seeing

that the rules

of

international

aw have

changed-and

do

change-and

29.

[1975]

1

W.L.R.

1485

CA).

30.

[1977]

A.C.

373

(PC).

31.

[1958]

A.C. 379

(HL).

32.

[1977]

Q.B.

529,

554.



11/13

OCTOBER

989]

International

Law as

English

Law 933

that the

courts have

given

effect to the

changes

without

any

Act of

Parliament,

t

follows to

my

mind

nexorably

hat the rules of international

aw,

as

existing

rom

time to

time,

do

form

part

of our

English

aw. It

follows,

too,

that a decisionof this

court,as to whatwas the rulingof internationalaw 50 or 60yearsago, is not bind-

ing

on

this court

oday.

International

aw knowsno ruleof staredecisis.If this court

today

is satisfied

hat the

rule

of

international

aw

on

a

subject

has

changed

rom

what it

was 50

or 60

years

ago,

it can

give

effect to

that

change,

and

apply

the

change

n our

English

aw,

without

waiting

or

the

House

of

Lords

o

do it.

With all due

respect

to

the

great judge,

the reason behind this

complete

switch

of

allegiance

from dualism to monism over

just

three

years

is

only

too

obvious.33

It enabled

Lord

Denning

to achieve two results:

first,

to defeat the

application

of

the doctrine

of

precedent,

an

old

enemy

of

his; and, second,

to

change

the

law

relating

to

sovereign

immunity,

which he had had a

first

go

at in

Rahimtoola.34

This

decision

is

the latest

in

which

the

question

of the

relationship

between

customary

international law

and the

English

common law

has been

fully

dis-

cussed;

in the recent International

Tin

Council35

case

Nourse

LJ

regarded

Lord

Denning

MR's observations

as

having

settled the matter in

favour of the doc-

trine

of

incorporation.

F.

The

Case

Law

Examined

As was said

earlier,

the

problem

with all the decisions and

dicta

is

to know

pre-

cisely

what

they

all

add

up

to.

The

occasions on

which rules of

customary

inter-

national law fall to be

applied by

English

courts are

relatively

few. The cases

that have been

discussed are

to a

large

extent concerned

with

limited

types

of

situation.

Most of them

are

to do with immunities

of

foreign

States and

govern-

ments

and

of

diplomatic agents

or with

territorial waters.

That

is

to

say,

they

concern

questions

of

jurisdiction.

What

is

more,

it is

unclear what difference

it

made in

most of

the cases

whether or

not

international

law is

part

of

English

law.

The earliest

cases,

such

as

Triquet

v.

Bath,

were concerned with whether a

particular person

was or

was

not a

diplomatic agent

and therefore whether or not

he was

entitled to

the

immunity provided

for

by

the

Diplomatic Privileges

Act

1708.

It

is hard to

see

what difference it could make

to

the result of such

an

enquiry

whether

that Act

was

declaratory

of the law

of nations or not. De

Wutz v.

Hendricks

would

nowa-

days

be

regarded

simply

as

an

example

of the

refusal

by

the

English

courts to

enforce a contract which is

contrary

to

English

public

policy

in

that to

enforce

it

might

tend

to

prejudice

relations between

Britain and a

foreign

friendly

State

(that

is,

one

with

which

Her

Majesty

is

not

actually

at

war).

As

we have

seen,

33. More subtle and

perhaps

more

convincing

s

the

judgment

of

Shaw

LJ

in the

same

case.

34.

In PlanmountLtd v.

Republic

of

Zaire

[1981]

1 All

E.R.

1110,

the

decision

in

Trendtexwasapplied.But in UgandaCo. v. Governmentf Uganda 1979]1Lloyd'sRep.

481,

Donaldson

J

refused

to follow

it,

on

the

ground

hat he

was

bound

by

the

earlier

Court

of

Appeal

decisions.The

House of Lords

inally

adopted

he

restrictive

mmunity

rule

in The Primo

Congreso

del

Partido

1983]

A.C. 244.

The

matter s now

governed

n

respect

of

transactions

akingplace

after 22

November

1978

by

the

State

Immunity

Act

1978.

35.

Maclaine

Watson&

Co.

v.

Department

f

Trade

nd

Industry1988]

3

W.L.R.

1033,

1115

(CA).



12/13

934 International

and

Comparative

Law

Quarterly

[VOL.

38

West Rand

has

no,

or

at most

very

tangential,

bearing

on

the

matter,

for the

reasons

given.

The Thakrarcase turned

solely

on

the

application

of a

statute and

the discussion of international law and its doctrines could make no possible dif-

ference

to the result.

It

is

also

irrelevant to the

present argument,

since the

com-

mon law

was

not

in issue.

To

determine

whether international law

is or is

not

part

of

the law of

England

what one

must

look for

is

a case in which the

rule

of

English

law said X and

the

rule

of

international

law said

Y,

and the

application by

the court of X

would

bring

the United

Kingdom

into conflict with international

law

by

causing

a

breach

of its

obligations

thereunder. There are cases

of

this

type,

but

they

con-

cern the situations

in which the rule of

municipal

law

is in

a

statute

or the rule

of

international

law

(or

rather the international

legal obligation)

is

in

a

treaty.

Where the rule has been one of customary international law, as in The Cris-

tina

and

Chung

Chi

Cheung,

the

rule

of

English

law has been

identical

with

it,

so

no conflict

with

any

international

obligation

has arisen from the

application

of

the

English

rule.

At first

glance

R.

v.

Keyn

and Trendtex

appear

to

exemplify

the kind of

case

we are

looking

for. But a closer examination

of them shows

that

this is not so.

Taking

R. v.

Keyn,

if

we assume that

English

law

said

X and

international law

said

Y

(although

as we have seen

it

is

not

clear

that the

judges

thought

that it did

say

Y)

and the

court

applied

X rather than

Y,

nevertheless

no

conflict resulted.

This

was

because,

if

we assume

further

that

international

law

provided

that the

coastal State

possesses

jurisdiction

to

try foreigners

for acts committed on

foreign

vessels

within its

territorial

waters,

this is

merely

a

permissive,

not

a

mandatory,

rule.

It

merely says

that the

English

court could

try

Captain

Keyn,

not that it must

do so.

The Court for

Crown

Cases

Reserved held that the

Eng-

lish court

could not

do so

by English

law. But

Captain Keyn

or his

national

State,

the

German

Empire,

would

hardly

complain

that

he

was

not

tried and

convicted

and

punished

for

manslaughter.

He

left the court a free and

presum-

ably

happy

man. The

German

Emperor

was,

one

assumes,

not

displeased

at

the

result;

indeed,

as Dr

Geoffrey

Marston

has shown

us,

Germany

had

previously

been

complaining stridently

about

the

prosecution

of

Captain Keyn.36

In

Trendtex

the

old

rule of international

law said

that the

English

court

could

not entertain

an action

arising

out

of

a

commercial transaction

against

Nigeria

or its

government.

The

new rule

said it could.

If the

court

had

applied

the old

rule and

therefore

had not

acted

in

conformity

with

international

law,

Nigeria

would

hardly

have

complained,

for

it would

have

escaped

liability.

In

refusing

to

apply

the

correct rule

of international

law,

therefore,

the court would

not have

caused

a breach

of

any

international

obligation

owed

by

this

country

to

Nigeria.

Indeed

Nigeria

might

more

plausibly

argue

that

the court had

brought

about a

breach

of international

law

by

changing

English

law

to its

prejudice

after

the action had started; that is, indeed, what the Court of Appeal did. (It is, of

course,

conceivable

that if the

new

rule had

not been

applied,

then,

since

Trendtex

would have

been

precluded

from

pursuing

its

claim,

the

English

court

would

have

committed

a

denial

of

justice

entitling

Switzerland,

as Trendtex's

national

State,

to

bring

an

international claim

against

the United

Kingdom.

But

36.

(1976)

92

L.Q.R.

93-107.



13/13

OCTOBER

1989]

International

Law as

English

Law

935

this

would not have

occurred,

as it

happens,

because of

the court's

holding

that

the Central

Bank was

not

part

of the

Nigerian

State or

government.)

Thus, the upshot of an examination of the case law is that whether inter-

national law

is or

is not

part

of the law

of

England

remains,

as

our

Scottish

col-

leagues

put

it,

not

proven.

G. Conclusion

There

is,

perhaps,

one

real

argument

in

favour of the

incorporation

doctrine

which

is

often overlooked.

When,

as directed

by

the

choice

of

law rules of

pri-

vate international

law,

or

the conflict of

laws,

an

English

court is called

upon

to

decide

a

case

by

applying

the

law of

a

foreign

coulitry,

France for

example,

that

law has the status of fact. Like any other fact i- has to be proved by evidence

and,

like

some

other kinds

of

fact,

by

expert

witnesses,

should its

existence or

content

be contested. Rules of

public

international law are

not treated thus.

They

have the

status

of rules of law.

Of

course,

the

existence of a

rule

or

its con-

tent

may

be

in

doubt and the court

will have

to be

satisfied

in

this

respect,

but

this

is done

by

the

argument

of

counsel,

not the

evidence of

witnesses,

and

judicial

notice

will

be taken of the rules of

public

international

law.

However,

there is one

simple

solution

to

the whole

problem

discussed in this

article. Rather

than

saying

that international

law

is

part

of the

law of

England,

a

kind of subdivision

thereof,

it

is

more accurate to

regard

it

as a

source of

English

law. Some rules of

English

law,

such as those

concerning

State

immunity

before

they

were

replaced

by

the

statutory

regime

contained in

the

State

Immunity

Act

1978,

have been

consciously

derived

from

what were

regarded

as

rules and

prin-

ciples

of

international law

and

have

been

modelled

upon

them. That

is

to

say

that the

English

court does

what it is

supposed

to do and

applies

English

law as

such.

This was

all

pointed

out

by

the

late J.

L.

Brierly

many years

ago.37

There

is

really

no

mystery

about it

at

all and

there is

no need for

doctrinal

squabbles

to

enter into the

matter.

J. G.

COLLIER

37.

(1935)

51

L.O.R.

31.

BENEFICIAL

OWNERSHIP OF

INTERNATIONAL

CLAIMS

MUCH

of

the

law for

the

diplomatic protection

of

citizens

abroad

concerns

the

nationality

of claimants and the

legal

character

of their

rights.

One

aspect

of this

subject

that has

beguiled

and confused both

publicists

and

arbitrators is

the

beneficial

ownership

of such

claims. One

reason is

that

beneficial

ownership, by

definition,

implicates

the

standing

of

a

person

who

does

not

have

legal

title to

property,

but who has other

rights

in it that are the normal incident of owner-

ship.'

This

article considers whether

the

privilege

of

bringing

a

claim

before an

international tribunal is

just

such a

right

incidental to

ownership.

1. Black'sLaw

Dictionary 5th

ed.,

1979),p.142.

international law is a part of municipal law

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