British Institute of International and Comparative Law

Is International Law Really Part of the Law of England?

Author(s): J. G. Collier
Source: The International and Comparative Law Quarterly, Vol. 38, No. 4 (Oct., 1989), pp. 924-
935
Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
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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, supra n.2,
at
p.343 (per
Crockett
J).
Since the text of this was
prepared,
the
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
could exist in such circumstances. This contention was
rejected by
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,
insist that all law is as one and that international law and
municipal
law are
part
of a
single system.
The monist doctrine is connected with
naturalist theories and with the view that it is men and
women,
not
States,
who are
really
the
subjects
of international law in the sense of
having rights
and
owing
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OCTOBER
1989]
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.
529
(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.
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926 International and
Comparative
Law
Quarterly [VOL.
38
Thus,
in
conclusion,
we
may say
that international law is
part
of the law of
Eng-
land
except
when it 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
the 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 to me at the trial that it was
contrary
to the law of nations
(which
in all
cases of international law is
adopted
into the
municipal
code of
every
civilised
country),
for
persons
in
England
to enter into
engagements
to raise
money
to
sup-
port
the
subjects
of a
government
in
amity
with our
own,
in hostilities
against
their
government.
8.
(1764)
3 Burr. 478. Lord
Mansfield's judgment
contains 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
to restrain the
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.
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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
to
try
offences
by
foreigners
on board
foreign ships,
whether within or without the limit of three miles
from the shore of
England;
that that and the
subsequent
statutes
only
transferred to
the common law courts and the Central Criminal Court the
jurisdiction formerly
possessed by
the
admiral;
and
that, therefore,
in the absence of
statutory
enact-
ment,
the Central Criminal Court 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
law,
the
power
of a nation over the sea
within three miles of its coasts is
only
for certain limited
purposes;
and that Parlia-
ment could
not,
consistently
with those
principles, apply English
law within those
limits.
The six
judges
in the
minority
dissented
.
. on the
ground
that the sea within three miles of the coast of
England
is
part
of
the
territory
of
England;
that the
English
criminal law extends over those
limits;
and the admiral
formerly had,
and the Central Criminal Court now
has,
jurisdiction
to
try
offences there committed
although
on board
foreign ships.
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.
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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.
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OCTOBER
1989]
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 whatever has received the common consent of civilised nations
must have received the consent of our
country,
and that to which we have assented
along
with other nations in
general may properly
be called international
law,
and as
such will be
acknowledged
and
applied by
our
municipal
tribunals when
legitimate
occasion arises for those tribunals to decide
questions
to which doctrines of inter-
national law
may
be relevant. But
any
doctrine so invoked must be one
really
accepted
as
binding
between
nations,
and the international law
sought
to be
applied
must,
like
anything
else,
be
proved by satisfactory evidence,
which must shew
either that the
particular proposition put
forward has been
recognised
and acted
upon by
our own
country,
or that it is of such a
nature,
and has been so
widely
and
generally accepted,
that it can
hardly
be
supposed
that
any
civilised State would
repudiate
it . . . Barbuit's
case, Triquet
v. Bath and
Heathfield
v. Chilton are cases
in which the Courts of law have
recognised
and have
given
effect to the
privilege
of
ambassadors as established
by
international law. But the
expressions
used
by
Lord
Mansfield when
dealing
with the
particular
and
recognised
rule of international law
on this
subject,
that the law of nations forms
part
of the law of
England, ought
not
to be construed so as to include as
part
of the law of
England opinions
of text-
writers
upon
a
question
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. The cases of
Wolff
v.
Oxholm"' and Rex v.
Keyn
are
only
illus-
trations of the same
rule-namely,
that
questions
of international law
may arise,
and
may
have to be considered in connection with the administration of
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
law,
wherever
applicable,
is con-
sidered as
part
of the law of
England
and our
judges
must
apply
it
accordingly" (The
Lotus
case P.C.I.J. Ser. A. no.10
(1927)).
19.
(1817)
6
M.
& S. 92.
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930 International and
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).
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OCTOBER
1989]
International Law as
English
Law 931
It must
always
be remembered
that,
so far at
any
rate as the courts of this
country
are
concerned,
international law has no
validity
save in so far as its
principles
are
accepted
and
adopted by
our own domestic law. There is no external
power
that
imposes
its rules
upon
our own code of substantive law or
procedure.
The courts
acknowledge
the existence of a
body
of rules which nations
adopt among
them-
selves. On
any judicial
issue
they
seek to ascertain what the relevant rule
is, and,
having
found
it, they
will treat it as
incorporated
into the domestic
law,
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).
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932 International and
Comparative
Law
Quarterly [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 the
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 law 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.
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OCTOBER
1989]
International Law as
English
Law 933
that the courts have
given
effect to the
changes
without
any
Act of
Parliament,
it
follows to
my
mind
inexorably
that the rules of international
law,
as
existing
from
time to
time,
do form
part
of our
English
law. It
follows, too,
that a decision of this
court,
as to what was the
ruling
of international law 50 or 60
years ago,
is not bind-
ing
on this court
today.
International law knows no rule of stare decisis. If this court
today
is satisfied that the rule of international law on a
subject
has
changed
from
what it was 50 or 60
years ago,
it can
give
effect to that
change,
and
apply
the
change
in our
English
law,
without
waiting
for the House of Lords to 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
is the
judgment
of Shaw
LJ
in the same
case.
34. In Planmount Ltd v.
Republic of
Zaire
[1981]
1 All E.R.
1110,
the decision in
Trendtex was
applied.
But in
Uganda
Co. v. Government
of Uganda [1979]
1
Lloyd's Rep.
481,
Donaldson J refused to follow
it,
on the
ground
that he was bound
by
the earlier
Court of
Appeal
decisions. The House of Lords
finally adopted
the restrictive
immunity
rule in The Primo
Congreso
del Partido
[1983]
A.C. 244. The matter is now
governed
in
respect
of transactions
taking place
after 22 November 1978
by
the State
Immunity
Act
1978.
35.
Maclaine
Watson & Co. v.
Department of
Trade and
Industry [ 1988]
3 W.L.R.
1033,
1115
(CA).
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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 Thakrar case 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.
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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's Law
Dictionary (5th ed.,
1979), p.142.
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