7.1 DOCTRINE OF ADOPTION

7.1.1 INTERACTION OF LAWS.

Law is not a stagnant pond, but rather a steadily flowing river, which bears aloft the proud ship of justice. That river strives to develop consistently over time whilst navigating safely through the ever changing world about it. The law involved in this case comes from several very different sources, not merely international versus domestic, but within each of those streams there is also the distinction as between customary and conventional on the international plane, and as between common and statute law on the domestic plane respectively. Yet, if law is to operate as a dynamic and fluid system, capable of responding adequately and appropriately to changing circumstances and demands, each of these sources or streams cannot be viewed as or allowed to be a competing element in the system, but rather must be regarded as complementary and confluencial. Accordingly, it follows, that there must be a mechanism to permit the proper interaction of these laws, which secures the optimal balance for the needs of that consistent evolution whilst maintaining the contemporary and responsive dynamic.

I much prefer this (fluid dynamics) analysis to the more than somewhat academic dichotomy of the established jurists who dispute about whether the interaction between international and municipal laws is so-called “monist” or “dualist”. Naturally, as with any efficiently managed fluid dynamic system, rigorous control and regulation of the interaction of these various fluid streams is essential, if floods and droughts are to be avoided, instituted in this case by the application of judicial regulatory exemptions and controls upon the rate and degree of that interaction. The reader should now refer to the diagram set out at Fig.1 and the explanatory notes attached thereto to be found in Attached Document RLM 007.

For present purposes it suffices to state that there are two principal methods or streams for absorbing international law into our domestic law, namely the incorporation of conventional law by statute and the adoption of customary law into the common law. Each is subject to its own regulatory control mechanism which must nonetheless be complementary. However, I merely want here to point out that it is futile and ignorant in the extreme to speculate or propound, as I suspect that many in this country today do, that one stream is much more important or superior to the other. Indeed, that incorporation is being viewed today as an alternative to adoption, which is to be regarded as an “antiquated” concept. The two different methods are separate but complementary, they serve comparable but different and distinct functions. To set them against each other and favour one method over the other as more important is as logical as comparing town against country or youth against experience.

Judges today may not be as familiar or as comfortable with adopted law, as they are with incorporated law, and it is surely true that the judicial determination of the true aspect of such law is always going to be more demanding and potentially more fraught than with the textual certainties of statue ; but without the application and utilisation of adopted law by the courts of this land, this country should surely not be in a place today where it could even claim to be truly a part of the community of civilised nations, which is a claim that is equally surely made.

7.1.2 ADOPTION : The Early Authorities

The doctrine of adoption has informed and contributed to the dynamic evolution of the English Common Law since at least the time of the House of Tudor (see below under Piracy). The first use of the term ‘adoption’ is uncertain but it clearly existed by the middle of the 18th Century:

“ In England the Laws of Nations is adopted in its full extent 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 of England”

(1769) Book IV (Public) Chapter V p.67

A larger part of the early authorities on the topic, coming from throughout the 18th. and 19th. Centuries, concern themselves with the issue of the diplomatic immunities and privileges of foreign ministers and ambassadors Foremost amongst these are perhaps :

“ That the law of nations (which in its fullest extent was and formed part of the law of England) was the rule of decision in the cases of this kind; and that the act of Parliament was (merely) declaratory of it, and occasioned by a particular incident.”

Barbuit’s Case (1736) per Lord Talbot L.-C. (footnote)

(1736) Cas.temp.Talbot 281 @ 283, 25 ER 777

It was, however, Lord Mansfield himself in a subsequent diplomatic immunity case in 1764 who was able to put the verbatim observations of Lord Talbot above on a more precise footing, vis:

“ ...but the Act was not occasioned by any doubt ‘whether the law of nations, particularly that 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. ‘ I remember in a case before Lord Talbot, of Buvot v. Barbut ...the matter was elaborately argued at the Bar; and a solemn and deliberate opinion given by the court. ... Lord Talbot declared a clear opinion - ‘That the law of nations, in its full extent was part of the law of England.’ - ... ‘That the law of nations was to be collected from the practice of different nations, and the authority of writers.’ ...

I was counsel in this case, and have a full note of it. I remember, too, Lord Hardwick’s declaring his opinion to the same effect ; and denying that Lord Chief Justice Holt ever had any doubts as to the law of nations being a part of the law of England, upon the occasion of the arrest of the Russian Ambassador.”

Triquet v. Bath (1764) 3 Burr. 1478 ; 97 ER 936 per Lord Mansfield

Lord Mansfield returned to this point only 3 years later in 1767, re-emphasising the law on this point, presumably least any doubts on the matter should have persisted:

“ The privileges of public ministers and their retinue depend upon the law of nations ; which is part of the common law of England. .... The law of nations will be carried as far in England as any where ; because the Crown can do no particular favours, affecting the rights of suitors, in compliment to public ministers, or to satisfy their points of honour.”

Heathfield v. Chilton (1767) 4 Burr 2015@ 2016 ; 98 ER 50 per Lord Mansfield

By the start of the following century (the 19th.) the enthusiasm of the country's highest judges had not diminished at all for their proud boast that the common law of England adopted the law of nations to its fullest extent, here for example the Lord Chief Justice:

“ If we saw clearly that the law of nations was in favour of the privilege, it would be afforded to the defendant ; and it would be our duty rather to extend than to narrow it”

Viveash v. Becker (1814) 3 M&S 284@284 ; 105 ER 619 per Lord Ellenborough CJ

The next Lord Chief Justice was Lord Abbott, who regarding the same issue had the following to say:

“ The expression is certainly large, but the Act itself was only declaratory and in confirmation of the common law. It must, therefore, be construed according to the common law, of which the law of nations must be deemed a part.”

Novello v. Toogood (1823) 1 B&C 554@562 ; 107 ER 204 per Abbott CJ.

Lest the impression be given that all the early authorities are confined to the subject only of diplomatic immunities and privileges and the construction of the statute 7 Ann c.12, I cite now further authority in other fields in which international customary law was the source of law to be applied. In the case of De Wurtz v. Hendricks (1824) the issue was the right to raise funds in this country to support foreign subjects in rebellion against a government with which the Crown was in amity.

“ 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 civilized country), for persons in England to enter into engagements to raise money to support the subjects of a government in amity with our own, in hostilities against their government, and that no right of action could arise out of such a transaction. ... I think (now) that my opinion at the trial was right.”

De Wurtz v. Hendricks (1824) 2 Bing. 314 @ 315-6 ; 130 ER 326 per Lord Best CJ.

Then again a little later the judgement of Turner LJ in the case of The Emperor of Austria v. Day (1861), a famous case of the day that concerned the legality of the printing of bank notes in London, authorised by the former Hungarian Minister of Finance to the deposed King Ferdinand V, living then in exile in England, the Kingdom of Hungary having been occupied by and subsumed by the Austrian Empire:

“ It was urged for the Plaintiff that the right of coining money was universally acknowledged to be the prerogative of sovereigns vested in them for the benefit of their subjects - that the prerogative right extended no less to the creation of paper money than to the stamping of coin - that it was acknowledged by all nations and recognised by international law, and that, international law being a part of the law of England, this Court could interfere in favour of the rights recognised by and founded upon it. That the right of coining money is the prerogative of a sovereign is laid down by all the writers on international law, and I see no reason to doubt that the prerogative right reaches to the issue of paper money. ... To this extent, therefore, I agree with the argument on the part of the Plaintiff ... “

The Emperor of Austria v. Day (1861) De G.F.&J. 217@251; 45 ER 861 per Turner LJ.

If further authority on the point from the 19th century were needed, and from outside of the field of diplomatic immunities and privileges, then I cite Dolder v. Lord Huntingfield (1805) 11 Ves.jun 283 @ 294 ; 32 ER 109 per Lord Eldon L.-C. and Wolff v Oxholm (1817) 6 M&S 92 @100-06 ; 105 ER 1177 per Lord Ellenborough CJ. again.

So that, at the least we can say that throughout the course of the 18th. and 19th. centuries, if not before, the highest common law judges of the land were in no doubt regarding the application of the doctrine of adoption, ‘to its fullest extent’, and not only to the field of respect for the diplomatic immunities and privileges of foreign ministers and ambassadors etc., but also as regards other aspects of the international customary laws of the day as well.

7.1.3 The 20th Century authorities

Perhaps the best known and seminal expression of authority from the last century on the point comes from the well known judgement of Lord Alverstone C.J. in the matter of West Rand Central Gold Mining Co. v Rex (1905):

“ Whatever has received the common consent of civilised nations must have received the assent of out 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 international law may be relevant. “

West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ 406 per Lord Alverstone CJ

This particular passage was in turn cited with approval by Bankes LJ when giving the leading judgement of the Court of Appeal in the matter of Commercial and Estates Co. of Egypt v. The Board of Trade (1925). The point at issue there was whether or not a foreign plaintiff could sue the Crown for compensation for goods and chattels commandeered by the army for ‘war purposes’ under the auspices of the international law power called the ‘right of angary’. Having quoted the above passage from the judgement of Lord Alverstone CJ, Bankes LJ continues:

“ Accepting this as a correct statement of the law it would seem that the Courts of this country, apart from the Indemnity Act, would not have hesitated at the instance of a neutral to have administered the law of angary in its entirety had the neutral taken the proper steps to claim the exercise of their jurisdiction. ... in my opinion ... the right of angary ... is so well established in international law that it forms part of the municipal law of this country. “

Commercial and Estates Co. of Egypt v. The Board of Trade [1925] 2 KB 271@283 per Bankes LJ.

Finally, and to bring the authorities up to modern times, the question before the Court of Appeal in the matter of Trendtex Trading v. The Bank of Nigeria (1977) was whether the Court was bound to apply the pre-existing rule of customary international law, or whether being satisfied by the evidence of states practice that the rule had changed in recent years, they were free to update the common law by applying the contemporary rule instead. Shaw LJ. observed:

“ May it not be the true principle as to the application of international law is that the English courts must at any given time discover what the prevailing international rule is and apply that rule? ... What is immutable is the principle of English law that the law of nations (and not what was the law of nations) must be applied in the courts of England, ... This view would appear to be in accord with the dictum of Lord Mansfield CJ. in Heathfield v. Chilton 4 Burr. 2016, that “ the law of nations will be carried as far in England as anywhere.” So also Lord Lyndhurst in 1853, “The law of nations according to the decisions of our greatest judges is part of the law of England”. This is hardly consonant with the idea that what was the law of nations persists as a part of English law when it has long ceased to be part of international law.”

Trendtex Trading ltd. v. The Bank of Nigeria [1977] 1 QB 529 (CA) @578-79 per Shaw LJ.

Hopefully the reader is now better able to appreciate why it is that Sir Hartley Shawcross A.-G. was confident of his ground when he stated in argument before the Nuremberg Tribunal (see above @ 6.1) that “In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.”

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