Prosecuting Tony Blair and others

BACKGROUND DOCUMENT - RLM 007

INTERACTION OF LAWS

SEPARATE NOTES TO FIG. 01

[1] INCORPORATION (by statute)

Relevant Example: The International Criminal Court Act, 2001achieving the statutory ‘incorporation’ of the Rome Statute for theInternational Criminal Court, 1998.

Beware that this process has also been termed, by some writers, as‘transformation’, who then typically, and more than some whatconfusingly, also then proceed to refer to ‘adoption’ (see below) as‘incorporation’ instead. This author deliberately prefers to adopt(pun intended) the terminology, as set out in the diagram, and in deference tothe language chosen by Sir William Blackstone (see below) ; since in my view,the term 'incorporation' is clearly more consonant with the usual process forthe creation of statute law, whilst the term ‘adoption’ is moreconsonant with the customary creation of common law.

So far as the municipal court which is charged with applying suchincorporated international law is concerned, doubtless the fact that thestatute in question owes its provenance to an international conventional lawtreaty is only of peripheral significance, as compared to the fact that, as aninstrument of statute law, it comprises a part of the ‘supreme law’in the land. However, the court will inevitably have especial regard to theconstruction of the statute by reference to the existing internationaljurisprudence on the interpretation and effect of the correspondinginternational treaty which it is intended to incorporate ( as to which see alsonote 3 below).

[2] ADOPTION (conditional)

Relevant example: The common law offence of “piracy juregentium” complete with a universal jurisdiction for the prosecution of anoffence considered ‘hostis humani generis’.

“ in England ...the Law of Nations ...is ..adopted in its fullextent by the common law, and is held to be a part of the law of the land ...without which it must cease to be a part of the civilised world. “

Sir William BLACKSTONE “Commentaries on the Laws ofEngland” (1769) Book IV (Public) Chpt.V, page 67.

Notwithstanding, the use of the description “to its full extent”by Blackstone, I describe the process of ‘adoption’ as being‘conditional’, as opposed perhaps to ‘wholesale’,especially in order to emphasise the very significant and cumulative conditionaleffect of all of the well established common law limitations upon theapplication of the doctrine. These are dealt with in more detail in the body ofthe text, but they include at least a clear subjection of adopted common law toboth statute law and even the application of the rule of ‘staredecisis’ as applied to finally settled superior court decisions. Also, therequirement for, and the conclusive nature of, executive evidence on theexistence and character of certain international ‘facts’. Also therequirement that the customary rule of law to be adopted must be wellestablished and settled, and in the view of some jurists at least, that thereshould also be specific evidence of assent by the Crown.

[3] Statutory Construction by reference to Conventional Law

Relevant example: Construction, by the municipal courts, of EnglishStatutes which affected fundamental human rights, by reference to the desire tobe consistent and consonant with the relevant provisions of the EuropeanConvention for the Protection of Fundamental Rights and Freedoms 1950, prior tothe recent and specific incorporation of that treaty into English Statute Law bymeans of the Human Rights Act 1998. See esp. R. v. Secretary of State forthe Home Department, ex p. Brind [1991] 1 AC 696 (HL) @ pp. 747H-748A perLord Bridge.

However, please note carefully that, contrarywise, the specific‘adoption’ into the common law (as opposed to only an aid to theconstruction of a specific statute) of the provisions of, or arguably even ofany ‘principles of law’ specifically and solely deriving from, anypart of an international treaty, even though it is one which the Crown has bothsigned and ratified for a significant time, would be in contravention of theconstitutional principle on the separation of powers. This is because, ifallowed, that could then permit the courts to thereby to ‘create’ or‘recognise’ either obligations upon or rights exercisable by Britishsubjects; which in turn would amount to enabling the Crown to thereby legislatefor the subject without consent of Parliament, by concluding the treaty in theinternational sphere alone.

[4] Codification of Customary International Law by treaty.

Relevant example: The UN International Law Commission’s Draft Code on“Offences against the Peace and Security of Mankind” (1996) leadingto informing the provisions of the “Rome Statute on the establishment ofan International Criminal Court” (1998).

Codification of the principles of customary public international law is oneof the principal judicial functions of the United Nations, which has establishedthe International Law Commission (1949) specifically to assist and advise it inthat regard. In this manner it is intended to take the initial steps in order tothen lead onto and facilitate the conclusion and widespread ratification ofinternational conventions, which achieve the codification of that law andthereby bring to it greater certainty, clarity, consistency and thus hopefullyrespect and observance. See typically the preamble to many UN Conventionssponsored by and arising out of the work of the ILC (e.g. most recently The Lawof the Sea Convention 1982)

[5] Conventional International Law being Declaratory of CustomaryInternational Law.

Relevant example: Arts. 2(3)&(4) of the Charter of the United Nationsnow universally recognised and accepted as declaratory of a norm ofinternational customary law prohibiting the use of aggressive force ininternational relations, see the judgement of the International Court of Justicein Nicaragua -v- The United States (1986) No.70 @ para. 188.

This is a complementary and reciprocal feature of the codification ofinternational law by treaty, in that where a treaty provision has attained sucha widespread acceptance and recognition .by the accession of, and observance inthe practice of, the overwhelming majority of nations comprising theinternational community, such as is self-evidently the case as with the Charterof the United Nations, then those treaty provisions are then able to be regardedas declaratory of ‘norms’ of customary behaviour binding on allstates, whether party or not, as a part of international customary law.

[6] Common Law informs the development of General (Customary)International Law.

Relevant example: Art. 38(1)(c) of the Statute of the International Court ofJustice, defining the juridical jurisdiction of that court as including“international custom, as evidence of a general practice accepted aslaw”.

The principles of law as disclosed by the English Common Law, and asclarified and elaborated upon by case law authorities, serve to inform andcontribute to the general principles of law shared between the so-called‘common law’ jurisdictions around the World, principally but notexclusively in the Commonwealth and the United States. These in turn contributegreatly to the ‘principles of law generally accepted by the civilisedworld’ and which then in their turn inform the development of customaryinternational law, as disclosed in the judicial decisions of the most importantof international tribunals.

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